Hospital Authority v. Gray

Court of Appeals of Georgia

Hospital Authority v. Gray

181 S.E.2d 299, 123 Ga. App. 415, 1971 Ga. App. LEXIS 1247

CourtCourt of Appeals of Georgia

DecidedFebruary 4, 1971

Docket45804

StatusPublished

Cited by12 cases

This text of 181 S.E.2d 299 (Hospital Authority v. Gray) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hospital Authority v. Gray, 181 S.E.2d 299, 123 Ga. App. 415, 1971 Ga. App. LEXIS 1247 (Ga. Ct. App. 1971).

Pincite

Opinions

Deen, Judge.

This is an appeal from (a) an order sustaining the motion of cross defendant, Dr. Gray, for judgment on the pleadings against the Hospital Authority of Emanuel County, co-defendant in the main case and plaintiff in the cross action; (b) denying the cross plaintiff’s motion to strike amendments to the cross defendant’s answer in the main case; (c) denying cross plaintiff’s motion for judgment on the pleadings; and (d) its motion for summary judgment on the issue of liability.

Mrs. Fountain brought an action for malpractice naming as defendants Dr. W. E. Gray, Jr., Dr. Herbert R. Frost and Hospital Authority of Emanuel County. The Authority answered setting up various defenses and cross claimed against Dr. Gray on the ground that any negligence was his, that he had not been au[416]*416thorized to use the facilities of the hospital to perform the surgery resulting in the alleged injury, and that the admission of plaintiff to the hospital was in violation of various regulations of the hospital. The sole prayer of the cross complaint was for “judgment against Dr. W. E. Gray, Jr. for all sums that may be adjudged against cross complainant in favor of Mrs. Fountain.” Thereafter, on March 19, 1969, the plaintiff entered into a covenant not to sue the Authority, as a result of which the Authority was dismissed as a party defendant. On December 30, 1969, a consent order signed by the court and all remaining parties was filed of record, reciting that the plaintiff’s claims had been settled, costs of court paid, and the action dismissed with prejudice. In June of the next year, the Authority attempted to amend its pleadings and to seek judgment against Dr. Gray for the sums formerly expended by it to obtain the covenant not to sue. Held:

1. Prior to Ga. L. 1966, p. 433 (Code Ann. § 105-2012 (1)) one joint and several tortfeasor could not sue the other for contribution unless judgment had been obtained against both. After the amendment of subsection 1, one joint and several tortfeasor cannot sue the other for contribution unless judgment has been obtained against and paid off by the one seeking the contribution. Hangar Cab Co. v. City of Atlanta, 122 Ga. App. 661 (178 SE2d 292). This eliminates the right of contribution in cases involving voluntary covenants not to sue.

2. Appellant here contends that it is not asking for contribution but is seeking to recover damages against Dr. Gray for sums which it was forced to expend to obtain the covenant not to sue as the cheapest way out of a situation caused solely by the negligence of the co-defendants if negligence was in fact involved. It sought to amend its cross petition and change its prayers so as to proceed on the theory of damages incurred by reason of the lawsuit. However, at the time the case was settled and dismissed in December 1969, all that the appellant sought was a judgment over in the event that a judgment was entered against it. The consent order dismissing the case affirmatively established that thereafter no judgment could be entered against anybody, and the case ceased to be pending at that [417]*417time. Since it was not pending it could not be amended six months later in an effort to convert it into a damage suit by one co-defendant against another. The cross action is not saved by Code Ann. § 81A-141 (a) providing that after the filing of a counterclaim the case cannot be dismissed over the counter-claimant’s objection unless the counterclaim (or, as here, cross claim) can remain pending for independent adjudication, because at the time of the dismissal the cross claim was for contribution only and the dismissal of the whole case eliminated this issue.

Submitted January 4, 1971 Decided February 4, 1971 Rehearing denied March 5, 1971 — Cert, applied for. W. Ward Newton, for appellant. Oliver, Maner & Gray, Thomas S. Gray, Jr., for appellee.

The ruling of the trial court sustaining the motion for judgment on the pleadings is without error, and the remaining enumerations of error are unnecessary to be considered.

Judgment affirmed.

Bell, C. J., concurs. Pannell, J., concurs specially.

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Deen, Judge.

This is an appeal from (a) an order sustaining the motion of cross defendant, Dr. Gray, for judgment on the pleadings against the Hospital Authority of Emanuel County, co-defendant in the main case and plaintiff in the cross action; (b) denying the cross plaintiff’s motion to strike amendments to the cross defendant’s answer in the main case; (c) denying cross plaintiff’s motion for judgment on the pleadings; and (d) its motion for summary judgment on the issue of liability.

Mrs. Fountain brought an action for malpractice naming as defendants Dr. W. E. Gray, Jr., Dr. Herbert R. Frost and Hospital Authority of Emanuel County. The Authority answered setting up various defenses and cross claimed against Dr. Gray on the ground that any negligence was his, that he had not been au[416]*416thorized to use the facilities of the hospital to perform the surgery resulting in the alleged injury, and that the admission of plaintiff to the hospital was in violation of various regulations of the hospital. The sole prayer of the cross complaint was for “judgment against Dr. W. E. Gray, Jr. for all sums that may be adjudged against cross complainant in favor of Mrs. Fountain.” Thereafter, on March 19, 1969, the plaintiff entered into a covenant not to sue the Authority, as a result of which the Authority was dismissed as a party defendant. On December 30, 1969, a consent order signed by the court and all remaining parties was filed of record, reciting that the plaintiff’s claims had been settled, costs of court paid, and the action dismissed with prejudice. In June of the next year, the Authority attempted to amend its pleadings and to seek judgment against Dr. Gray for the sums formerly expended by it to obtain the covenant not to sue. Held:

1. Prior to Ga. L. 1966, p. 433 (Code Ann. § 105-2012 (1)) one joint and several tortfeasor could not sue the other for contribution unless judgment had been obtained against both. After the amendment of subsection 1, one joint and several tortfeasor cannot sue the other for contribution unless judgment has been obtained against and paid off by the one seeking the contribution. Hangar Cab Co. v. City of Atlanta, 122 Ga. App. 661 (178 SE2d 292). This eliminates the right of contribution in cases involving voluntary covenants not to sue.

2. Appellant here contends that it is not asking for contribution but is seeking to recover damages against Dr. Gray for sums which it was forced to expend to obtain the covenant not to sue as the cheapest way out of a situation caused solely by the negligence of the co-defendants if negligence was in fact involved. It sought to amend its cross petition and change its prayers so as to proceed on the theory of damages incurred by reason of the lawsuit. However, at the time the case was settled and dismissed in December 1969, all that the appellant sought was a judgment over in the event that a judgment was entered against it. The consent order dismissing the case affirmatively established that thereafter no judgment could be entered against anybody, and the case ceased to be pending at that [417]*417time. Since it was not pending it could not be amended six months later in an effort to convert it into a damage suit by one co-defendant against another. The cross action is not saved by Code Ann. § 81A-141 (a) providing that after the filing of a counterclaim the case cannot be dismissed over the counter-claimant’s objection unless the counterclaim (or, as here, cross claim) can remain pending for independent adjudication, because at the time of the dismissal the cross claim was for contribution only and the dismissal of the whole case eliminated this issue.

Submitted January 4, 1971 Decided February 4, 1971 Rehearing denied March 5, 1971 — Cert, applied for. W. Ward Newton, for appellant. Oliver, Maner & Gray, Thomas S. Gray, Jr., for appellee.

The ruling of the trial court sustaining the motion for judgment on the pleadings is without error, and the remaining enumerations of error are unnecessary to be considered.

Judgment affirmed.

Bell, C. J., concurs. Pannell, J., concurs specially.

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181 S.E.2d 299, 123 Ga. App. 415, 1971 Ga. App. LEXIS 1247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hospital-authority-v-gray-gactapp-1971.

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