Craven v. Allen

164 S.E.2d 358, 118 Ga. App. 462, 1968 Ga. App. LEXIS 1431

• Court: Court of Appeals of Georgia
• Decided: October 8, 1968
• Docket: 43819
• Status: Published

Opinions

Deen, Judge.

1. The verdict of the jury in this personal injury case read: “We the jury find in favor of the plaintiff the amount of $10,000, and against the defendant James Hershell Allen in the amount of $1,000, and against the defendant Robert C. Maulc in the amount of $9,000.” The trial court entered an order- declaring the verdict illegal. The appellant moved for judgment in accordance with the verdict, the denial of which is enumerated as error.

(a) The common law rule against apportionment of compensatory damages is in force except in those states which have by statute expressly authorized apportionment by the jury. See Norris v. Richards, 193 Tenn. 450 (246 SW2d 81); Stoewsand v. Checker Taxi Co., 331 Ill. App. 192 (73 NE2d 4); Ress v. Rediess, 130 Col. 572 (278 P2d 183); Aitken v. White, 93 Cal. App. 2d (208 P2d 788); Brewer v. Appalachian Constructors, 138 W. Va. 437 (76 SE2d 916); Fitzgerald v. Thompson, 167 Kan. 87 (204 P2d 756); Bakken v. Lewis, 223 Minn. 329 (26 NW2d 478); Southland Broadcasting Co. v. Tracy (Miss.), 50 S2d 572; Bell v. Riley Bus Lines (Ala.), 57 S2d 612.

(b) 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. McCarthy v. Combs, 78 Ga. App. 426 (50 SE2d 805); Hightower v. Landrum, 109 Ga. App. 510 (5a) (136 SE2d 425); Glore v. Akin, 131 Ga. 481 (1) (62 SE 580).

(c) Is the above stated rule changed by the provisions of Code Ann. § 81A-120 which provides in part: “Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities”? This section adopted verbatim the provisions of Rule 20, Fed. R. Civ. P., which contains the general provisions for the permissive joinder of plaintiffs and defendants in civil actions, and insofar as possible it should be construed in the context in which it was applied in Federal courts. These courts have uniformly held that whether or not the jury may apportion a verdict as between joint and several tortfeasors depends entirely on the law of the state in which the case is tried, and is not affected by the language of Rule 20. See Ford Motor Co. v. Hill, 245 FSupp. 796; Detroit City Gas Co. v. Syme, 109 F2d 366; Malone v. Wright, 364 F2d 818. In Stoewsand v. Checker Taxi Co., 331 Ill. App. 192, 204, supra, it was held that an Illinois statutory provision that “more than one judgment may be rendered in the same case” did not affect,the substantive state law, but referred to “the use of separate judgments only when the plaintiff presented separate demands or causes of action against the several defendants.” Rule 20 has not, so far as we can ascertain, received any contrary construction. Code § 105-2011 has been neither modified nor repealed. Taken in context, the last sentence of Code Ann. § 81A-120 and Federal Rule 20 from which it was adopted refer to circumstances where defendants counter claim or file cross actions or where the plaintiff sets up separate or alternate demands. Nothing in the pleadings in this case suggests that the plaintiff seeks other than a joint judgment against joint and several tortfeasors. We accordingly hold that the verdict was illegal, and that the trial court did not err in granting the motions for mistrial.

Argued September 9, 1968 Decided October 8, 1968. C. C. Perkins, for appellant. Neely, Freeman & Hawkins, Joe C. Freeman, Jr., Greer & Murray, for appellees.

Judgment affirmed.

Jordan, P. J., concurs. Pannell, J., concurs specially.