Southern Ry. Co. v. City of Rome

• Decision Date: 17 September 1934
• Docket Number: 9986.
• Citation: 176 S.E. 7,179 Ga. 449
• Parties: SOUTHERN RY. CO. v. CITY OF ROME. [a1]
• Court: Georgia Supreme Court

176 S.E. 7

179 Ga. 449

SOUTHERN RY. CO. v. CITY OF ROME. ^[a1]

No. 9986.

Supreme Court of Georgia

September 17, 1934

Rehearing Denied Sept. 28, 1934.

Syllabus by the Court.

1. The act of the General Assembly of February 25, 1784, adopted the laws of England of force on May 14, 1776, as the laws of Georgia, only "until the same shall be repealed amended, or otherwise altered by the legislature." Cobb's Dig. p. 721, § 1.

2. The rule of the common law which denied the right of contribution to joint tort-feasors is not of force in Georgia. Under the provisions of sections 4588 and 5971 of the Civil Code 1910 the right of contribution extends equally to actions ex contractu and actions ex delicto, "where all are equally bound to bear the common burden, and one has paid more than his share."

3. It follows that the Court of Appeals erred in reversing the judgment of the superior court overruling the demurrer based upon the ground that the plaintiff, being a joint tort-feasor, was not entitled to contribution to reimburse it for the payment of the equal liability of the defendant who was "equally bound to bear the common burden."

Certiorari to Court of Appeals of Georgia.

Suit by the Southern Railway Company against the City of Rome. Judgment overruling a demurrer to the petition was reversed by the Court of Appeals (47 Ga.App. 489, 170 S.E. 695), and the plaintiff brings certiorari.

Judgment of the Court of Appeals reversed.

On April 28, 1923, Mrs. Mollie Autry brought suit jointly against the city of Rome and the Southern Railway Company claiming damages on account of the death of her son, John Autry, on account of alleged joint acts of negligence of the two defendants. To this petition the Southern Railway Company demurred. The court sustained the demurrer, which decision was reversed by the Court of Appeals. Autry v. Southern Railway Co., 32 Ga.App. 8, 123 S.E. 752. Upon the trial of the case the jury found a verdict against the two defendants jointly. Each of them filed a motion for new trial. The motions were overruled, and each defendant filed a separate bill of exceptions. The Court of Appeals affirmed the judgment. Southern Railway Co. v. Autry (City of Rome v. Autry) 36 Ga.App. 552, 137 S.E. 414. Each defendant filed an application to the Supreme Court for the writ of certiorari. This court denied the application of the Southern Railway Company. Counsel for the plaintiff, on May 28, 1927 while the application of the city of Rome for a writ of certiorari was still pending, entered judgment against the Southern Railway Company and the surety on its supersedeas bond, for the amount of principal and accrued interest of the verdict; and on May 30, 1927, the clerk of the superior court issued a fi. fa. on the judgment. In July, 1927, the sheriff levied the fi. fa. on property of the railway company, and advertised the same for sale on the first Tuesday in August 1927. The Supreme Court denied the application of the city of Rome for the writ of certiorari, and on June 30, 1927, counsel for the plaintiff entered judgment against the city of Rome and the surety on its supersedeas bond, for the full amount of the principal and accrued interest of the verdict; but the plaintiff made no demand on the city or its surety for payment of the judgment, and made no effort to collect the same or any part thereof from the city. On July 25, 1927, the railway company filed in the superior court an equitable petition against Mrs. Autry and the sheriff and the city and surety on its supersedeas bond, setting out a history of the case, and praying for an order enjoining the sale of the property levied on, and for cancellation of the judgments against the railway company and against the city of Rome, and asking for an order directing the taking of judgment jointly against the city and the railway company, and an order directing that the city and the surety on its supersedeas bond be compelled to contribute by payment of half of the amount of the judgment. Mrs. Autry filed a demurrer which was overruled, and she excepted. This court reversed the judgment, holding that the trial court erred in not sustaining that demurrer. Autry v. Southern Railway Co., 167 Ga. 136, 144 S.E. 741.

On March 23, 1932, the Southern Railway Company filed its petition against the city of Rome, seeking to recover contribution on account of the payment by the railway company of the amount of the judgment obtained by Mrs. Autry, set out above. The petition alleged the railway company had paid the amount of this judgment, to protect itself from having the property sold by the sheriff under levy of the execution, on which, after the entry of levy, appeared the following: "Received of Southern Railway Company the sum of eight thousand six hundred and eighty and 20/100 ($8,680.20) dollars, in full payment of the principal, interest to this date, and cost due on the within execution; and in consideration thereof said execution with all of my right, title, and interest therein is hereby transferred and assigned to said Southern Railway Company, one of the codefendants in said execution. This the 13th day of November, 1928." This receipt was signed by Mrs. Autry and her attorneys. The plaintiff prayed for judgment against the city for half the amount paid as above, with interest. A general demurrer to the petition was overruled, and this judgment was reversed by the Court of Appeals (City of Rome v. Southern R. Co., 47 Ga.App. 489, 170 S.E. 695), and the plaintiff obtained a writ of certiorari.

Maddox, Matthews & Owens, and G. E. Maddox, all of Rome, for plaintiff in error.

Porter & Mebane, Leon Covington, and Wright & Covington, all of Rome, for defendant in error.

RUSSELL, Chief Justice (after stating the foregoing facts).

The Southern Railway Company, having paid Mrs. Autry in full, seeks by means of this action to compel the joint defendant in fi. fa., the city of Rome, to pay its aliquot part of their joint liability as evidenced by the execution. It would seem, upon principles of natural justice and equity, that, as Mrs. Autry's original action was against the defendants jointly, and since her recovery imposed equal liability on each of the defendants to her suit, the demand by the railway company is not ill founded. However, the city contends that the equitable doctrine of contribution has no application in this case, because the city and the railway company were joint tort-feasors. The city contends that the common law upon this subject is still of force in Georgia; and that, as contribution among joint tort-feasors was not permitted by the rules of the common law, the petition in this case presents no cause of action. The prime question which confronts us is whether a codefendant in a judgment whose liability has been fixed by verdict, either specifically, as provided by the Civil Code, § 4512, or generally, depending upon the number of codefendants (section 4588), shall be debarred of all right of contribution because he was a joint tort-feasor. This question was not answered in Autry v. Southern Railway Co., 167 Ga. 136, 144 S.E. 741, for the sufficient reason, as stated by Mr. Justice Hines, that it was premature; it appearing from the record that the railway company had at that time paid out nothing. It was apparent that the plaintiff could not ask to be reimbursed in any amount, when it had paid nothing. Subsequently, on November 13, 1928, the railway company paid Mrs. Autry, in full, the amount specified in the receipt.

So the question is now squarely presented whether the plaintiff, by paying off the joint fi. fa., and having the fi. fa. transferred to itself, discharged the obligation of its codefendant, the city, and released it from liability on the judgment, for the sole reason that, although the city was a codefendant, the original action was ex delicto and not ex contractu. At common law, the right of contribution is denied in actions ex delicto. Is that feature of the common law still a part of the laws of Georgia? It must be remembered that in the act of February 25, 1784 (Cobb's Dig. p. 721), adopting the laws of force in England on May 14, 1776, there was a provision in the adopting act that the laws of the mother country were to be enforced only "until the same shall be repealed, amended or otherwise altered by the Legislature." Section 1. The Civil Code 1910, § 4588, draws no distinction between actions ex contractu and actions ex delicto. It is as follows: "In cases of joint, or of joint and several, or of several liabilities of two or more persons, where all are equally bound to bear the common burden, and one has paid more than his share, he is entitled to contribution from the others; and whenever the circumstances are such that an action at law will not give a complete remedy, equity may entertain jurisdiction." The permission to have contribution "where all are equally bound to bear the common burden, and one has paid more than his share," is absolutely unrestricted. This certainly effects such a change in the common law denying contribution to a joint tort-feasor as is incompatible with its further existence in this case. This was recognized in Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 633, 18 S.E. 1015, 1016, an action against joint tort-feasors, where the court said: "It must be remembered, however, that in making joint trespassers liable for contribution, the principle of contribution, as stated in section 3132 of the Code [of 1882; Civ. Code 1910, § 4588] (though that section is not expressly applicable to suits founded on torts), is to be observed. That principle is that where all are equally bound to bear the common burden, and one has paid more than his share, he is entitled to contribution from the others."

It...