Whitehead v. Central of Georgia Railway Co.

190 S.E.2d 794, 126 Ga. App. 407, 1972 Ga. App. LEXIS 1169

• Court: Court of Appeals of Georgia
• Decided: May 3, 1972
• Docket: 46750
• Status: Published

Opinions

Eberhardt, Presiding Judge.

Beltha Robinson filed suit against Central of Georgia Railway Company seeking to recover damages for the wrongful death of her minor son, who she alleges was killed at a grade crossing when he was a passenger in a truck owned by Charlie Whitehead and operated by his minor son, Mack Arthur Whitehead.

The railroad filed its answer and defenses, and also filed a third-party complaint against Charlie Whitehead, alleging that the truck was a family-purpose vehicle and was being so used at the time of its collision with the train, and that the death of plaintiff’s son had resulted proximately and solely from the negligence of Mack Arthur Whitehead, operator of the truck, for whose negligence the third-party defendant, Charlie Whitehead, was responsible. Whitehead moved to dismiss the third-party complaint, and from a denial of the motion appeals, the trial judge having granted a certificate of review. Held:

We reverse. If, as is asserted in the third-party complaint, the negligence of Whitehead’s son in driving the truck was the "sole and proximate cause” of the death of plaintiff’s minor son, it is apparent that the complaint does not meet the test of Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 800 (165 SE2d 587) and Southern R. Co. v. Ins. Co. of North America, 228 Ga. 23, 30 (183 SE2d 912), and cases following these, for, in that event Central of Georgia "has no right to indemnity from [Whitehead] and needs none, since under this set of facts, assuming them to be true, [Central of Georgia] cannot be liable in any event.”¹ Whether the allegation that the negligence of Whitehead’s son was "the sole and proximate cause” of the death of plaintiff’s minor son be construed for or against the defendant it can mean only one thing, and the result is that the railroad seeks to tender another defendant—the very thing which we have held to be impermissible. Indeed, this allegation needs no construction. For the same reason the third-party complaint cannot be sustained on the theory of contribution, since that right exists only between joint tortfeasors. Nor is there any right of subrogation, or of warranty, in favor of Central of Georgia against Whitehead.

Submitted January 3, 1972— Decided May 3, 1972— Rehearing denied June 9, 1972. W. L. Dwyer, for appellant. R. L. LeSueur, Sr., H. A. Wilkinson, for appellee.

Anything appearing to the contrary in Register v. Stone’s Independent Oil Distributors, 122 Ga. App. 335, 344 (177 SE2d 92) must yield to the older decision in Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 800, supra, and it will not be followed.

The third-party complaint fails to state a claim upon which relief can be granted and the motion to dismiss should have been granted.

Judgment reversed.

Bell, C. J., Hall, P. J., Pannell, Deen, Quillian and Clark, JJ., concur. Evans, J., dissents. Stolz, J., not participating.

1 If a true indemnity situation were presented, arising under a contract or a legal obligation to indemnify, the indemnitor could, under the rule or statute, be made a third-party defendant. This we have recognized.