Southern Ry. Co. v. A. O. Smith Corp.

• Decision Date: 12 February 1975
• Docket Number: No. 50126,No. 2,50126,2
• Citation: 213 S.E.2d 903,134 Ga.App. 219
• Parties: SOUTHERN RAILWAY COMPANY v. A. O. SMITH CORPORATION et al
• Court: Georgia Court of Appeals

Page 903

213 S.E.2d 903

134 Ga.App. 219

SOUTHERN RAILWAY COMPANY v. A. O. SMITH CORPORATION et al.

No. 50126.

Court of Appeals of Georgia, Division No. 2.

Feb. 12, 1975.

Rehearing Denied March 10, 1975.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Stuart E. Eizenstat, Jesse W. Hill, Atlanta, for appellant.

Gambrell, Russell, Killorin, Wade & Forbes, David A. Handley, Robert B. Wedge, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, George H. Connell, Jr., Swift, Currie, McGhee & Hiers, W. Wray Eckl, G. Michael Hartley, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

The principal question presented in this appeal is determination of the applicability of the 1972 statutes which changed our law on contribution and indemnity. Did that change entitle appellant to recover from appellees the amount it paid in compromise (without suit or judgment) to an injured party for a tort which occurred prior to the effective date of the change?

Southern Railway Company sued four corporate defendants seeking recovery from them under the theory of contribution or indemnity for the amount which it had paid to an employee who had been injured on September 7, 1971, by a coupling device on a railroad car. The four defendants were the manufacturer, distributor, installer, and owner-lessor of the equipment. The action was based upon two statutes enacted in 1972 which changed our law as to contribution and indemnity among joint tortfeasors. The first of these statutes found at pp. 132, 133 of Ga.L.1972, amended § 105-2012 so that it removed the previous existing requisite of suit or judgment. The second statute at p. 134, with reference to the right of indemnity, likewise eliminated the necessity of suit or judgment and is contained in the Annotated Code as § 20-1206.

Each of the four defendants sought summary judgment on the basis that these 1972 statutes did not apply because the tort occurred on September 7, 1971, and the statute did not create the right to contribution or indemnity without suit or judgment until 1972, when the settlement was effected with its employee. This appeal is from the trial court's grant of a summary judgment for all of the four defendants.

1. We consider first whether plaintiff's lawsuit is ruled by the laws of contribution and indemnity in effect when plaintiff's employee was injured, or by the laws of contribution and indemnity in effect when plaintiff compromised the employee's claim.

At the time plaintiff's employee was injured (September 7, 1971), no right of contribution arose under Georgia law until a judgment was entered against the party seeking contribution. Thornhill v. Bullock, 118 Ga.App. 186, 188(2), 162 S.E.2d 886; Hangar Cab Co. v. City of Atlanta, 122 Ga.App. 661, 178 S.E.2d 292. Thus, where a tortfeasor compromised the injured party's claim, he had no right of contribution against an alleged joint tortfeasor. Hangar Cab Co. v. City of Atlanta, supra. And, in order for a party seeking implied indemnity to recover, the existence of the party's liability also had to be legally ascertained, presumably by judgment. Terrell v. Stevenson, 97 Ga. 570, 25 S.E. 352; Southern Nitrogen Co. v. Stevens Shipping Co., 114 Ga.App. 581, 151 S.E.2d 916; Robert & Company v. Pinkerton & Laws Co., 120 Ga.App. 29, 34(2), 169 S.E.2d 360.

However, at the time plaintiff compromised the employee's claim (April 19, 1972), Georgia law provided, 'Without the necessity of being charged by suit or judgment, the right of contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death, and release therefrom.' Code Ann. § 105-2012 (Ga.L.1972, p. 132). And an identical provision was in effect concerning 'the right of indemnity, express or implied.' Code Ann. § 20-1206 (Ga.L.1972, p. 134).

Plaintiff contends its lawsuit is ruled by the laws of contribution and indemnity in effect when plaintiff compromised the employee's claim. Thus, plaintiff argues its cause of action against these four defendants had not been prejudiced by the settlement or the absence of a judgment. We disagree. 'It is well settled that a statute affecting substantive rights operates prospectively. Code § 102-104. The right of contribution between joint trespassers is a substantive right created by statute. Southern R. Co. v. City of Rome, 179 Ga. 449, 176 S.E. 7. In a negligence case the substantive rights of the parties are fixed at the time of the injury or event on which liability depends. (Cits.)' F. H. Ross & Co. v. White, 224 Ga. 324, 325(2), 161 S.E.2d 857, 858. Since the incident upon which the plaintiff's and defendants' liability depends occurred on September 7, 1971, the law in effect at the time of the settlement has no bearing on this case. See Lewis Card & Co. v. Liberty Mutual Ins. Co., 127 Ga.App. 441, 443, 193 S.E.2d 856.

Since no judgment had been entered against plaintiff, the right of contribution did not accrue; and the trial court did not err in granting summary judgment to defendants. Hangar Cab Co. v. City of Atlanta, supra; Hospital Authority of Emanuel County v. Gray, 123 Ga.App. 415, 416(1), 181 S.E.2d 299. Compare McMichael v. Georgia Power Co., 133 Ga.App. 593, 211 S.E.2d 632.

2. In opposition to the summary judgment motions, plaintiff submitted an affidavit from an attorney who averred he had drafted these 1972 contribution and indemnity statutes and it was his intention for the statutes to be retroactively applied. 'While the opinion of a member of the legislature which passed an act, or that of the comptroller-general, as to its meaning and purpose, might possibly often be valuable and constructive in construing the act and arriving at the legislative intent, it cannot be seriously contended that courts can properly resort to...