Opinion
39029.
DECIDED SEPTEMBER 27, 1961. REHEARING DENIED OCTOBER 13, 1961.
Action for damages. Gwinnett Superior Court. Before Judge Pittard.
Nall, Miller, Cadenhead Dennis, Douglas Dennis, B. Carl Buice, for plaintiffs in error.
Howard T. Oliver, Jr., contra.
Where the negligent acts of two persons combine, although not done simultaneously, to cause an injury to a third person they are joint tortfeasors, and the release of the first tortfeasor will release the other.
DECIDED SEPTEMBER 27, 1961 — REHEARING DENIED OCTOBER 13, 1961.
Paul Hosch, Jr., filed an action against the City of Buford, Ga., and H. M. Taylor, a police officer of such city, to recover for injuries sustained when, after being involved in one wreck, when the automobile in which he was riding as a guest went out of control and turned over, the plaintiff was injured when an automobile driven by Joe Wansley struck the vehicle involved in the first wreck and as a result of such collision the defendant's automobile was struck causing the same to be "knocked" upon the plaintiff. The defendants filed their answers and an amendment thereto, which answer as amended not only denied the material allegations showing negligence on their part but pleaded the release of a joint tortfeasor which release had the effect of releasing them. On the trial of the case the jury returned a verdict for the plaintiff and thereafter the defendants' motion for a judgment non obstante veredicto in accordance with their motion for a directed verdict was overruled and it is to such judgment adverse to them that the defendants now except.
The defendants in the present case contend, in support of their motion for a judgment non obstante veredicto, that the release given to the driver of the automobile in which the plaintiff was a guest relieved them of liability.
The defendants contend, assuming arguendo that they were negligent, that they were joint tortfeasors with the driver of the automobile in which the plaintiff was a guest and the release given one released all so as to bar a recovery in the present case.
In the case of McDougal v. Johnson, 104 Ga. App. 233 ( 121 S.E.2d 417), the holding in the second division of the case of Close v. Matson, 102 Ga. App. 663 ( 117 S.E.2d 251), was held to be dictum. In Longino v. Moore, 53 Ga. App. 674 ( 187 S.E. 203), it was stated: "It is a well established general rule that `where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages, and in such case a joint action against them cannot be maintained.' But it is also true that even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several persons combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred; and there can be a recovery against all or any one of the responsible parties." In § 879 of the Restatement of the Law of Torts two examples of joint liability are given and example (b), as follows, is applicable to the present case: "An automobile operated by A negligently strikes C causing him to fall into the street, however, doing no substantial harm to him. Before C can arise he is hit by an automobile being negligently operated by B and injured severely." In such a case both A and B are liable to C and a joint action will lie. In other words, they are joint tortfeasors. While in the present case the action is not against B but rather against a second person occupying the status of A for here the driver of the automobile in which the plaintiff was riding and the defendants "set up" the plaintiff for the injuries sustained when B crashed into the wrecked vehicle. The plaintiff was thrown from the automobile negligently operated by his host and the defendants allegedly were negligent in parking their automobile so that it blocked the roadway, et cetera, so that the automobile driven by Wansley caused the second wreck and the real injuries to the plaintiff. While the negligence of the defendants and the negligence of the drivers of the other two automobiles was not concurrent, the negligence combined to cause the injuries sued for, and the release of the one joint tortfeasor, which release was admitted, released all.
Accordingly the judgment overruling the defendants' motion for a judgment non obstante veredicto was error was must be reversed with direction that judgment be entered in accordance with such motion.
Judgment reversed with direction. Carlisle, P. J., and Eberhardt, J., concur.