Southern Ry. Co. v. Acme Fast Freight

• Citation: 19 S.E.2d 286,193 Ga. 598
• Decision Date: 14 March 1942
• Docket Number: 13927.
• Parties: SOUTHERN RY. CO. v. ACME FAST FREIGHT, Inc.
• Court: Supreme Court of Georgia

19 S.E.2d 286

193 Ga. 598

SOUTHERN RY. CO. v. ACME FAST FREIGHT, Inc.

No. 13927.

Supreme Court of Georgia

March 14, 1942

Syllabus by the Court.

'Where a defendant may have a remedy over against another, and vouches him into court by giving notice of the pendency of a suit, the judgment rendered therein will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover. Civil Code, § 5821, Code of 1933, § 38-624. The judgment in such a case is not an adjudication of the question whether the primary defendant is entitled to recover against his vouchee, upon a suit brought by him against the latter after a recovery has been had in the first action.' Charleston & Western Carolina R. Co. v Union Warehouse & Compress Co., 139 Ga. 20, 76 S.E. 360. There being no act or conduct on the part of the vouchee to take this case from within the application of this general rule, it must be given effect.

Rockland Clothing Company sued Saul for a bill of goods alleged to have been turned over to Acme Fast Freight, Inc., the agent of Saul in New York, as directed. Saul by his plea denied only that the goods had been received, and pleaded that if they had been delivered to Acme they had been lost or stolen in transit. Saul vouched Acme into court to defend the suit. Acme made appearance, and vouched the Southern Railway Company, the delivering carrier to whom the goods had been delivered at Baltimore by the Pennsylvania Railroad, the initial railway carrier, which had issued the bill of lading to Acme. In this suit Rockland Clothing Company recovered against Saul. Thereupon Saul sued Acme for the amount of the judgment which he had paid to Rockland; and Acme again vouched Southern Railway Company into court to defend this suit. The Southern made no appearance. Saul recovered against Acme. Thereupon Acme sued the Southern Railway Company for the amount which it had paid on the judgment obtained against it by Saul; setting up the previous vouchments, and contending that the liability of the Southern to it had thus been adjudicated. During the trial of the suit by Acme against the Southern, counsel for both parties entered into a stipulation that 'the pilferage of the carton occurred in New York City and before the shipment was transferred by the Pennsylvania Railroad to the Southern Railway Company (which took place at Baltimore Maryland).' The judge, acting as court and jury, found against the plaintiff. That judgment having been reversed by the Court of Appeals, the case is now before this court by virtue of the grant of a writ of certiorari on petition by the Southern Railway Company. The Southern contends that neither of the vouchments of it by Acme in the two preceding suits was authorized; and further, that, even if it was properly vouched, the question of its liability to Acme had not thereby been determined. For a more detailed statement of the facts involved, see the report of the decision by the Court of Appeals, 65 Ga.App. 647, 16 S.E.2d 62.

Neely, Marshall & Greene and Edgar A. Neely, Jr., all of Atlanta, for plaintiff in error.

Hugh A. Head, Jr., and Hooper, Hooper & Miller, all of Atlanta, for defendant in error.

JENKINS Justice.

'Where a defendant may have a remedy over against another, and vouches him into court by giving notice of the pendency of the suit, the judgment rendered therein shall be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover.' Code, § 38-624. To '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, [there] 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.' Usry v. Hines-Yelton Lumber Co., 176 Ga. 660, 667 168 S.E. 249, 253; Raleigh & Gaston R. Co. v. Western & A. R. Co., 6 Ga.App. 616, 65 S.E. 586. Whether or not, in the first-mentioned suit by Rockland Clothing Company against Saul, the attempted avouchment of the Southern Railway Company by Acme, which was not a defendant but itself a vouchee, was permissible under the statute and the rule just stated, need not here be determined (see Loeb v. May, 186 Ga. 742, 744, 198 S.E. 785), since in the second suit, provided Acme had a remedy over against the Southern, such avouchment was proper. If Acme did in fact have a remedy over against the Southern, then under the Code section quoted its avouchment by Acme would render the finding in the suit of Saul against Acme conclusive against the Southern as to the liability and the amount of liability by Acme to Saul; and upon such right to a remedy over being subsequently established by aliunde proof, the...