Summary
In Gamble v. Reeves Transportation Co., 126 Ga. App. 161 (190 S.E.2d 95), a cross claim was dismissed for failure to state a claim.
Summary of this case from Whitehurst v. Universal C.I.T. Credit CorporationOpinion
47051.
ARGUED APRIL 3, 1972.
DECIDED APRIL 27, 1972.
Action for damages. Floyd Superior Court. Before Judge Scoggin.
Covington, Kilpatrick Storey, J. S. Kilpatrick, for appellants.
Matthews, Walton, Smith, Shaw Maddox, Oscar M. Smith, for appellees.
In this joint and several action for damages for a collision allegedly caused by the joint and concurrent negligence of the four defendants, the cross claim of two of the defendants against their two co-defendants, seeking to recover from them whatever amounts the cross claimants may be held liable for in the pending action, did not state a claim on the theories of either indemnification or contribution.
ARGUED APRIL 3, 1972 — DECIDED APRIL 27, 1972.
Burlington Industries, Inc., brought an action for damages against Stephen L. and H. L. Gamble, and Reeves Transportation Co. and its truck driver, jointly and severally, for a collision between the trucks of the plaintiff and defendant Reeves Transportation Co., allegedly caused by the joint and concurrent negligence of the defendants. The Gambles' alleged negligence was improperly maintaining their automobile, resulting in their left front tire's coming off and rolling into the path of the plaintiff's oncoming truck. Reeves' alleged negligence was driving its truck too closely behind a vehicle which was immediately following the Gambles' automobile, necessitating the Reeves truck's swerving to its left into its passing lane on a three-lane highway to avoid colliding with the stopping vehicles ahead, resulting in its colliding with the oncoming plaintiff's truck, which also swerved to its left into the oncoming traffic's passing lane in order to avoid the rolling tire. To the complaint, the Gambles filed an answer and nine defenses, the ninth defense being as follows: "If it were to be determined that the plaintiff on its claim is entitled to recover from these defendants, or either of them (which right of recovery is specially denied) then, in that event, these defendants would be entitled to judgment over against Reeves Transportation Co. and their driver, George Wyle Jones, both jointly and severally on account of the alleged negligence attributed by plaintiff to co-defendants Reeves Transportation Co. and George Wyle Jones in plaintiff's complaint for such amounts as may be found against either or both of these defendants." The trial court granted the motion of defendants Reeves Co. and its driver to dismiss the cross claim alleged in the ninth defense and to strike the prayer for relief based thereon in the answer, from which order the Gambles appeal.
The appellants' ninth defense, as quoted above, failed to state a claim upon which relief can be granted under Code Ann. § 81A-108 (a) (Ga. L. 1966, pp. 609, 619, as amended). It does not contain "a short and plain statement of the claim showing that the pleader is entitled to relief." It does not allege that the co-defendants were guilty of any negligence that resulted in any damages sustained by appellants. White v. Augusta Motel Hotel Inv. Co., 119 Ga. App. 351, 353 ( 167 S.E.2d 161).
The appellants' ninth defense seeks to make the co-defendants liable in the event "it were determined that the plaintiff on its claim is entitled to recover from these defendants" (appellants).
The cross claim stated no basis for a claim for indemnification. Black's Law Dictionary (3d Ed.) defines "indemnity" as follows: "A collateral contract or assurance, by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forbearance on the part of one of the parties or of some third person. . . [citing, inter alia, Nat. Bank of Tifton v. Smith, 142 Ga. 663 ( 83 S.E. 526)]. The term is also used to denote a compensation given to make the person whole from a loss already sustained; ..." (Emphasis supplied). The first definition above is not applicable to the present situation, in which no contract or assurance is alleged to be involved. The second definition is also inapplicable, as it pertains to losses already sustained.
Nor did the cross claim state a claim for contribution. Contribution between joint tortfeasors is permitted under the provisions of Code Ann. § 105-2012 (Ga. L. 1966, p. 433) when the judgment has been entered against both joint tortfeasors and when it has actually been paid by one in an amount exceeding his pro rata share. Powell v. Barker, 96 Ga. App. 592, 595 ( 101 S.E.2d 113); Thornhill v. Bullock, 118 Ga. App. 186 (2) ( 162 S.E.2d 886); Hangar Cab Co., v. City of Atlanta, 122 Ga. App. 661 ( 178 S.E.2d 292).
In the present case, neither of the above conditions has been met. No judgment has been entered against both joint tortfeasors; hence, the cross claimants could not have paid any judgment or a pro rata share thereof. Furthermore, the cross claim does not seek merely the co-defendants' payment of their pro rata share of any joint judgment against all of the defendants (which is recoverable by contribution), but goes further to seek to recover from the co-defendants the entire amount for which the cross claimants may be held liable under a joint judgment. This amounts to a defense completely denying all liability to the plaintiff, which cross claimants asserted elsewhere in their answer and which was, therefore, subject to being stricken for redundancy. Code Ann. § 81A-112 (f) (Ga. L. 1966, pp. 609, 622; as amended). The issues of the liabilities of all of the parties defendant, including the cross claimants, were made by the pleadings and must be decided by a jury at the trial. If the jury finds against the cross claimants and in favor of their co-defendants, this would adjudicate their co-defendants' nonliability to the plaintiff, hence their nonliability for contribution to the cross claimants. On the other hand, if the verdict and judgment are against all of the defendants jointly and severally, this would adjudicate the cross claimants' (as well as their co-defendants') negligence and liability to the plaintiff; even if the cross claimants then paid the entire judgment, they could recover only the amount paid in excess of their pro rata share thereof from their co-defendants, and not the full amount of the judgment, as they sought to do.
"Georgia follows the common law rule against apportionment of damages among joint and several tortfeasors except where, under the provisions of Code § 105-2011, the statute law sanctions such apportionment in cases involving trespasses to property." Craven v. Allen, 118 Ga. App. 462 (1b) ( 164 S.E.2d 358) and cit. (Emphasis supplied). The provision in Code Ann. § 81A-113 (g) (Ga. L. 1966, pp. 609, 625), "Such cross claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant," does not modify the above-stated common law rule in effect in this State in an action seeking a joint judgment against joint and several tortfeasors, just as this rule was held not to have been modified by Code Ann. § 81A-120 (Ga. L. 1966, pp. 609, 631) in the Craven case, supra.
The cross claim did not state a claim against the co-defendants; therefore, the trial court properly dismissed it and struck the accompanying prayer for relief.
Judgment affirmed. Bell, C. J., concurs. Evans, J., concurs in the judgment only.