Raleigh & G.R. Co. v. Western & A.R. Co.
| Decision Date | 30 September 1909 |
| Docket Number | 1,514. |
| Citation | 65 S.E. 586,6 Ga.App. 616 |
| Parties | RALEIGH & G. R. CO. et al. v. WESTERN & A. R. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The mere fact that A. has a right of action against B. involving an act or omission of B. which renders A. liable to C. does not necessarily give A. when sued by C. a remedy over against B. Even though A. might have a right of action against B this right of action would not necessarily give him such a remedy over against B. as would enable him to vouch B. into the case when sued by C. upon a cause of action arising from breach of contract for the performance of which B. was in no way guarantor or security. For one who is himself sued to have a right to vouch another into court it is not enough that the vouchee is liable in some way to the voucher, but it must appear that the liability of the vouchee arises from the identical cause of action upon which the voucher is in danger of being held liable, or that the ground of the liability arises from the same subject-matter.
An action sounding in tort to recover damages for injury to personal property is barred in four years (Civ. Code 1895, § 3899); and it is therefore too late, when more than four years have elapsed before the bringing of the suit, for one who is sued for liability arising out of a contract to vouch another who is liable to him in tort.
A right of action for a tort accrues immediately upon the infliction of the injury.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by the Raleigh & Gaston Railroad Company and others against the Western & Atlantic Railroad Company. Judgment for defendant, and plaintiffs bring error. Affirmed.
Brown & Randolph, for plaintiffs in error.
Tye Peeples, Bryan & Jordan, for defendant in error.
RUSSELL J. (after stating the facts as above).
1. The question as to whether or not the allegations of the petition make out a case necessitates a construction of section 5234 of the Civil Code of 1895. This section of the Code is not of statutory origin, but is simply an adaptation of the language employed by the Supreme Court in the cases of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774, and Faith v Atlanta, 78 Ga. 779, 4 S.E. 3. By an examination of the sources from which the Code section was adopted, it will be seen that it is merely a statement of a well-known common-law principle, and that it was not the intention of the codifiers by inserting it in the Code to hedge it about with any unusual limitations or give to it any additional scope. The principle embodied in the Code section is referred to and discussed in Bullock v. Winter, 10 Ga. 214. Considering the origin of the Code section, it is clear that the remedy over, which will authorize the voucher to give another (the vouchee) notice of the pendency of the suit and require him to come in and defend it so that the judgment obtained therein will be conclusive upon the vouchee as to the amount and the right of the original plaintiff to recover, must be such a remedy over against the vouchee as that the issues in the two suits would be practically identical, both on the question of liability and the question of the amount of damages. There must at least be such a relation between the parties that the defenses which the vouchee could set up in the original suit would be the same defenses that he could set up if he were sued by the voucher. As is said in Consolidated Machine Co. v. Bradley, 171 Mass. 127, 50 N.E. 464, 68 Am.St.Rep. 409: "If a party is obliged to defend against the act of another against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit and may call upon him to defend it; *** but this principle does not apply where one is defending his own wrong, or his own contract, although another party may be responsible to him." The suit of the Pullman Company against the Raleigh & Gaston was upon a breach of contract growing out of a failure to repair the car "Emison," and interest was claimed and recovered for failure to repair within a reasonable time. The right of action of the Raleigh & Gaston against the Western & Atlantic according to the allegations of the petition depends upon the former's right to recover for the tort; the damages arising from the negligent action of the Western & Atlantic in running its train into the car and damaging it. The defenses which could be set up to defeat the right in the suit between the Pullman Company and the Raleigh & Gaston were wholly different from the defenses which could be set up to defeat the right asserted in the suit between the Raleigh & Gaston and the Western & Atlantic. While it is not perhaps necessary that actual privity should be shown to exist between the voucher and the vouchee, there is nothing better settled than that the liability of the voucher and the vouchee shall grow out of the same subject-matter. This is true of every case arising under this section which the Supreme Court has passed upon. Under the terms of the contract between the Pullman Company and the Raleigh & Gaston, the latter company was liable to repair all damages happening to cars while in its possession, even when the injury to the cars was the result of casualty or accident. Under this contract the Raleigh & Gaston was bound to make the repairs, no matter how they became necessary, if the necessity arose while the cars were in its possession. The liability of the Western & Atlantic to the Raleigh & Gaston was entirely independent of and distinct from the liability of the Raleigh & Gaston to the Pullman Company. The right which was asserted by the Pullman Company against the Raleigh & Gaston was the right to be indemnified for breach of contract in failing to repair the car. The right which the Raleigh & Gaston had against the Western & Atlantic was the right to recover damages for the tort in negligently damaging the car. There was not only no privity, but there was total want of identity in the two causes of action. It is not so much the fact that the liability in the one case was in tort while in the other it was in contract, as that the contract related to one thing and the liability in tort depended upon a different thing. The liability in the one case depended upon negligence. The liability in the other case existed without regard to negligence.
The case of McArthor v. Ogletree, 4 Ga. App. 429, 61
B. E. 859, is a case (as pointed out by counsel for defendant in error) in which there was no contractual liability in the first suit, while there was a contractual liability on the part of the vouchee to the voucher to indemnify the voucher for damages recovered in the first suit. That was a case in which one person had by contract agreed to indemnify another person in case a judgment was obtained for a tort; and both of the liabilities included the same subject-matter. For this reason the McArthor Case is not in point in support of the proposition asserted by the plaintiff in error, though it does furnish an instance of where contractual liability may overlap and include liability arising by operation of law. If in the present case the Raleigh & Gaston had contracted to pay all damages arising from negligence only, then it might be that the Raleigh & Gaston could properly have vouched the Western & Atlantic into court, since it was the act of the latter which really caused the damage to the car. Or, if the Western & Atlantic had by contract agreed to indemnify the Raleigh & Gaston for any liability which might arise by virtue of its contract with the Pullman Company, a simple case for vouching would be made out. In the McArthor Case the vouchee was by contract an indemnifier, and had expressly agreed to reimburse the voucher for any damage he might sustain by virtue of the first suit. It was a case where the party vouched had by contract assumed liability in case the other party to the...
To continue reading
Request your trial