Rowland v. Vickers
| Decision Date | 13 February 1974 |
| Docket Number | Nos. 1,No. 48754,2,3,48754,s. 1 |
| Citation | 131 Ga.App. 121,205 S.E.2d 503 |
| Parties | Wanda C. ROWLAND v. Woodrow VICKERS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where only one of two occupants of an automobile can be the driver and responsible for the plaintiff's injuries, an action against either one terminating in a settlement which finally disposes of all issues in the case is a satisfaction under Code Ann. § 3-114, and in the absence of special circumstances precludes the plaintiff from bringing a subsequent action against the other occupant of the vehicle, where, if she prevailed, the two judgments would necessarily be repugnant and inconsistent.
The plaintiff Mrs. Rowland and her husband were involved in an automobile collision with a vehicle occupied by Joseph Aldridge and Ralph Vickers. Rowland and Vickers were killed.
Mrs. Rowland first sued Aldridge, alleging that he was the driver of the vehicle and that as a result of his negligence her husband was killed and she injured. Prior to trial a settlement agreement was reached in the sum of $14,000 and the following order entered: 'It appearing to the court that the parties in the above matter have reached an agreement settling all issues in this action and it appearing that such settlement is in the interest of the parties, it is ordered that said action be dismissed and the same is hereby dismissed with prejudice.'
Plaintiff then filed the present action against Vickers' estate, seeking damages for her husband's death and her own injuries based on the same factual situation except that she now alleges that Vickers was driving the car and that it was Vickers' negligence (rather than that of Aldridge) which caused the collision. The defendant filed a motion for summary judgment in opposition to which the plaintiff deposed that she 'individually and as administratrix of her husband's estate executed a covenant not to sue Joseph Lee Aldridge, Ira L. Aldridge and Central Mutual Insurance Company and dissmissed her suit against the said Joseph Lee Aldridge.' She further testified that the settlement in the first action covered the death of her husband and her personal injuries. The motion for summary judgment was granted and the case is here for review.
Jack J. Helms, Homerville, Farrar & Farrar, Arthur C. Farrar, Curtis Farrar, Douglas, for appellant.
Bennett, Pedrick & Bennett, John W. Bennett, Waycross, Preston & Preston, Montgomery L. Preston, Douglas, for appellee.
It is the contention of the plaintiff that the settlement of the Aldridge lawsuit amounted only to a covenant not to sue and does not bar the porsecution of the present action. Where joint and several tortfeasors are involved it becomes a question of whether the settlement is a pro tanto payment for the purpose of allowing one of the defendants to 'buy his peace' or whether it is intended as a settlement of the tort under the rule that there can be but one satisfaction of a right of action and that the release of one joint tortfeasor releases all. The case against Aldridge was terminated by a final judgment of the trial court which recited that it and the agreement on which it was based terminated all issues, which certainly means that, so far as the plaintiff is concerned, she received a substantial sum of money because of the negligence of Aldridge being the proximate cause of her injuries.
At what point has the plaintiff elected her remedy and obtained 'a satisfaction'? Prior to 1967 (Ga.L.1967, pp. 226, 247) it was well established that the plaintiff had to choose prior to judgment (except for a voluntary dismissal of the action without prejudice) which of two defendants he would hold accountable for the injury where the liability of one was repugnant to the liability of the other. Johnson v. Epting, 185 Ga. 667, 196 S.E. 413; Crane v. Atlanta &c. Lowry National Bank, 40 Ga.App. 83, 149 S.E. 58; Winn v. National Bank of Athens, 110 Ga.App. 133, 138 S.E.2d 89. Thereafter Code, § 3-114 was changed from the right to pursue 'consistent concurrent remedies against different persons until he shall obtain a satisfaction from some of them' to 'consistent or inconsistent remedies against . . . different persons until he shall obtain a satisfaction from some of them.'
The question is therefore not whether the remedies were consistent, and not whether the settlement was a covenant not to sue or a release, but whether the plaintiff has obtained 'a satisfaction' against a person which precludes another satisfaction based on a repugnant theory of what happened. She cannot under any circumstances hold both Aldridge and Vickers. Her settlement of the suit against Aldridge which 'settled all issues' according to the judgment rendered, which was for a substantial sum and which depended for its existence entirely on the fact that the defendant in the present appeal was not at fault, amounts to 'a satisfaction' and bars a subsequent suit against another person on the same cause of action.
Further the plaintiff, having entered into an agreement settling the issue of whose negligence was the cause of her injuries, and having procured this agreement to be made the judgment of the court and having procured a substantial consideration, is now estopped to contend that the injuries were in fact caused by another, where there can be no issue of joint liability, and the liability of the one in and of itself establishes the innocence of the other.
The trial court did not err in granting Vickers' motion for summary judgment.
Judgment affirmed.
The question for determination is whether the plaintiff's 'settling' her suit against Aldridge and the dismissal with prejudice barred her present action against the defendant for the same damages.
Code Ann. § 3-114 provides: 'A plaintiff may pursue any number...
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