Lewis Card & Co. v. Liberty Mutual Insurance

193 S.E.2d 856, 127 Ga. App. 441, 1972 Ga. App. LEXIS 910

• Court: Court of Appeals of Georgia
• Decided: October 5, 1972
• Docket: 47455
• Status: Published

Opinions

Eberhardt, Presiding Judge.

Fabrica Nacional de Alfombras, S. A., a Venezuelan corporation, brought suit against Lewis Card & Co. Inc., (now Card & Co., Inc.), Horne Heavy Hauling, Inc. (and its insurer Georgia Casualty & Surety Co. (Ga. L. 1937, pp. 727, 728; Code Ann. § 68-509)), and Georgia Ports Authority, alleging that it purchased textile machinery from Card in Chattanooga, Tennessee; that Horne, a common carrier, transported it in a pre-rigged wooden container from Chattanooga to the docks of the Ports Authority at Savannah for offloading prior to being loaded aboard a vessel for shipment to Venezuela; and that during removal from Horne’s vehicle at the docks the machinery was dropped resulting in damage in the amount of $14,368.34. It was alleged that Card was negligent in prerigging the wooden container for shipment with wire lifting slings in a manner which barely allowed enough room for the insertion of a cargo hook, and that this method of rigging caused an undue strain to be placed upon the cables; that Horne was negligent in failing to ascertain that the rigging of the container was deficient, and in improperly supervising the offloading of the container from its vehicle; that the Authority was negligent in the operation of its crane in the offloading, subjecting the wire sling to an uneven strain, causing it to break; and that the negligence of all defendants concurred to cause the damages for which they were jointly and severally liable. Card impleaded its liability insurer, Liberty Mutual Insurance Company, alleging that if plaintiff recovered of Card, Liberty Mutual was liable over to it under coverage afforded by the policy.

The trial court entered judgments sustaining the motions for summary judgment of original defendants Horne (and its insurer Georgia Casualty) and the Ports Authority, and also entered judgments sustaining a motion for judgment on the pleadings and for summary judgment of third-party defendant Liberty Mutual. Card, original co-defendant and third-party plaintiff, appeals from all the judgments. Original defendants Horne (and Georgia Casualty) and the Authority have moved below and here to dismiss the appeals as to each respectively. Held:

1. The motions to dismiss are predicated upon Southeastern Erection Co. v. Flagler Co., 108 Ga. App. 831 (134 SE2d 822), where we held that a co-defendant m a tort action has no standing to appeal the judgment granting another co-defendant’s motion for summary judgment since the right to do so is dependent upon the right of contribution under Code Ann. § 105-2012, which does not come into existence until those who have been sued have had judgment rendered against them upon trial. In response appellant points out that Flagler was decided in 1964, and at that time Code Ann. § 105-2012, which changed the common law rule of no-contribution, permitted contribution only where judgment was. entered jointly against more than one tortfeasor and was paid off by one. In 1966 the statute was amended by adding: "Where the tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if they had been jointly sued.” Ga. L. 1966, p. 433. However, under the statute as thus amended, no right of contribution arose until a judgment was entered against the tortfeasor seeking contribution. Thornhill v. Bullock, 118 Ga. App. 186 (2) (162 SE2d 886) (cert. den.); Hangar Cab Co. v. City of Atlanta, 122 Ga. App. 661 (178 SE2d 292); Hospital Authority of Emanuel County v. Gray, 123 Ga. App. 415 (1) (181 SE2d 299) (cert. den.). Thus no right of contribution accrued to one tortfeasor who, without judgment having been entered against him, paid sums to the plaintiff in settlement of the claim (Hangar Cab Co. v. City of Atlanta, 122 Ga. App. 661, supra) or under a covenant not to sue. Hospital Authority of Emanuel County v. Gray, 123 Ga. App. 415 (1), supra.

Then came Ga. L. 1972, p. 132, which amended Code § 105-2012 by adding: "Without the necessity of being charged by suit or judgment, the right of contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death, and release therefrom.” Appellant argues that this amendment provides a right of contribution among joint tortfeasors prior to judgment, and that it has a right of contribution against the codefendants. However, conceding but not deciding this to be correct, the occurrence or event upon which liability depends in this case occurred on July 1, 1968, and F. H. Ross & Co. v. White, 224 Ga. 324 (2) (161 SE2d 857) compels the holding that the 1972 amendment is not applicable here.

Moreover, even if it were, it is inconceivable that appellant has a right of contribution against the codefendants when it has made no compromise or settlement with plaintiff. Thus, since appellant has no right of contribution which has come into existence, either by way of judgment or settlement, we must apply the principle of Flagler that the right to appeal judgments granting summary judgment to codefendants is dependent upon an existing right of contribution, and the motions to dismiss must be sustained.

2. Appellant and third-party plaintiff Card enumerates as error the judgment sustaining third-party defendant Liberty Mutual’s motion for summary judgment. An exclusion in the policy provides that the insurance coverage relied upon by Card does not apply "to property damage to the named insured’s [Card’s] products arising out of such products or any part of such products.” "Named insured’s products” is defined as "goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle) . . .” (Emphasis supplied). Hence the issue here is whether the wire or cable slings pre-rigged by Card for the purpose of lifting the machinery, which broke or parted while the machinery was being unloaded at the Authority docks, were part of the "container” which had been constructed around the machinery. In this connection appellant states in its brief: "Appellant concedes that something permanently affixed to a container for the purpose of carrying, such as a handle on a bucket, is a part of the container: And if the handle on the bucket was defective the ordinary man on the street would understand that you had a defective bucket or defective container.”

To escape this self-evident proposition appellant contends that the slings should be considered "temporary wires, placed around the container to lift it.” Unfortunately, the lengthy evidence, highlighted at the end of this opinion, is clear and undisputed that the cable slings were deliberately designed by Card into the container unit in accordance with custom in the packing of heavy textile machinery, for the purpose of allowing it to be picked up in a particular manner, and that the slings were designed and constructed by Card to be used for lifting purposes throughout the useful life of the container unit. In Card’s terminology, it designed this particular handle for this particular bucket, affixed it thereto in the manufacturing process, and meant for no other handle to be used prior to dismantling of the container unit after delivery. As there is no issue of fact as to these matters, summary judgment was properly granted to Liberty Mutual.

3. Since summary judgment was properly granted to Liberty Mutual for the reasons indicated above, it is unnecessary to consider other exclusionary clauses relied upon by it or to review the judgment granting it judgment on the pleadings.

Appeals from judgments granting summary judgment to Horne, Georgia Casualty, and the Ports Authority dismissed. Judgment granting summary judgment to Liberty Mutual affirmed.

Clark, J., concurs. Deen, J., concurs in the judgment only. Argued September 14, 1972 Decided October 5, 1972 Rehearing denied October 26, 1972. Adams, Adams, Brennan & Gardner, Edward T. Brennan, for appellant. Corish, Smith, Remler & Moore, Malberry Smith, Jr., Pierce, Ranitz, Berry, Mahoney & Forbes, Dennis Pierce, Morton G. Forbes, Connerat, Dunn, Hunter, Houlihan, Maclean & Exley, Spencer Connerat, Jr., for appellees.