If the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury other than a nuisance, and if a rational basis does not exist for an apportionment of the resulting damages among the various causes, then the actors are joint tortfeasors, jointly and severally liable for the full amount of plaintiff's damages, notwithstanding the absence of voluntary intentional concert of action among them. This common law rule is not intended to conflict with Code § 105-2011 allowing apportionment of damages in particular kinds of actions.

ARGUED SEPTEMBER 13, 1973 — DECIDED FEBRUARY 27, 1974 — REHEARING DENIED MARCH 15, 1974 — CERT. APPLIED FOR.

This is a medical malpractice suit here on appeal following a jury verdict for the defendants.

HALL, Presiding Judge.

Plaintiffs below and appellants here are Mr. and Mrs. Irving Gilson; defendants-appellees are Dr. W. E. Mitchell, Sr., Dr. W. E. Mitchell, Jr., and Dr. Raul Soria. The suit grew out of the alleged negligence of the defendants in connection with the use of a central venous pressure catheter ("CVP Catheter") in Mr. Gilson's right external jugular vein throughout a period of several days of hospitalization during which time he underwent stomach surgery. Such a CVP Catheter is a flexible tube normally several inches long, designed to reach from the neck through a vein into the heart area, and the insertion of the one in question was done by Dr. Soria. The removal was accomplished by Dr. Mitchell, Jr., who found the catheter so short upon pulling it out of the vein that he, in conjunction with Dr. Mitchell, Sr., concluded that the missing length was adrift somewhere in Mr. Gilson's circulatory system where it could produce quick death. Mr. Gilson was inconclusively x-rayed to locate the missing part and then flown to Texas for treatment by a heart specialist whose tests were also inconclusive. Apparently, the fate of the missing length has never been medically determined.

Mr. Gilson's negligence suit against the three doctors sought recovery for his unnecessary subjection to mental distress and to surgical procedures, on the theory that the alleged missing length never existed but was in fact cut off by Dr. Soria prior to insertion. Mrs. Gilson's claim is for loss of consortium. The Gilsons alleged independent but concurring acts of negligence by the doctors, and sought a joint recovery against them. The rewritten and modified complaint advanced the claim that the doctors were joint tortfeasors and that their acts of negligence were as follows: Dr. Soria, without informing the Drs. Mitchell, and without telling plaintiffs of the experimental nature of his proceedings, inserted an abnormally short catheter and subsequently did not follow the patient's progress through removal of the catheter; the Drs. Mitchell, upon discovering the strangely short catheter, did not inquire of Dr. Soria the length he used but jumped to the conclusion that a piece was lost and immediately subjected the patient to expensive and painful procedures to "locate" the missing part. Thus the various acts of the Drs. Mitchell and Dr. Soria together produced the single injury to plaintiff of needless subjection to medical procedures and mental distress.

At trial, the Gilsons' stance was predicated upon their theory that the doctors were joint tortfeasors; that since the Drs. Mitchell presented evidence the plaintiffs should have the last argument to the jury; and that a joint verdict against the defendants was authorized. The doctors argued successfully below that they were not joint tortfeasors because they were not alleged to have acted in concert. The trial judge agreed with the doctors and ruled that they were not joint tortfeasors but were merely defendants in two separate negligence actions — one against the Drs. Mitchell as medical partners and one against Dr. Soria — and therefore, since Dr. Soria presented no evidence (though the Drs. Mitchell did) Dr. Soria was given the final closing argument to the jury. The order of closing arguments was — the Drs. Mitchell; plaintiffs; Dr. Soria. Denial to plaintiffs-appellants of the right to give the final argument is enumerated as error. Also enumerated is the trial judge's instruction to the jury that should they find for plaintiffs, separate verdicts in individual amounts would be required against the two "groups" of defendants. (There were four additional enumerations of which summary disposition is made below.)

The Gilsons were entitled to have the case tried to the jury on their theory of the doctors' liability unless as a matter of law such theory was inapplicable. Our decisive question at this point is whether as a matter of law acts such as those alleged in the complaint to have occurred would make of these doctors joint tortfeasors. We answer this question "yes" and rule that appellants are entitled to the benefits of a trial conducted upon their joint tortfeasors theory. A critical part of this holding is that "concert" of action is not required to be shown to constitute persons joint tortfeasors.

The Georgia cases concerning the definition of joint tortfeasors present some confusion in that certain decisions seem to require concert of action and others do not. It is our purpose here to outline the weight of authority in this state, and to eliminate certain prior inconsistent pronouncements of this court.

Let it be emphasized here that this discussion is concerned with the joint tortfeasor concept as a matter of substantive law and not merely as a procedural concept affected by recent joinder rules.

It has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff's damage. However, American law has expanded over the years from this beginning point, and presently textwriters and most Georgia cases are agreed that concert of action is not required — concurrent and independent wrongdoers are joint tortfeasors if their actions produce a single indivisible result and a rational apportionment of damages cannot be made. Examples of such an indivisible result could be death, a broken leg, any single wound, the total burning of a house, or sinking of a barge. Prosser, Torts § 52, p. 315 (4th Ed. 1971). "Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it: Here again the typical case is that of two vehicles which collide and injure a third person. The duties which are owed to the plaintiff by the defendants are separate, and may not be identical in character or scope, but entire liability rests upon the obvious fact that each has contributed to the single result, and that no rational division can be made." Id., p. 315.

"The correct procedure is to look first to the time of the commission of the acts. If there was concert of action, then there is no need to go further to establish entire liability. But if there was no concert, the next step should be to look to the combined effect of the several acts. If the acts result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts. However, if the combined result is a single and indivisible injury, the liability should be entire. Thus, the true distinction to be made is between injuries which are divisible and those which are indivisible." Note, Joint Torts and Several Liability, 17 Tex. L. Rev. 399, 405 (1939). (Emphasis supplied.) "The conclusion to be drawn from this grouping of the cases would seem to be, that a tort is `joint,' in the sense which the American courts have given to the word, when no logical basis can be found for apportionment of the damages between the defendants. The question is whether, upon the facts, it is possible to say that each defendant is responsible for a separate portion of the loss sustained. The distinction is one between injuries which are capable of being divided, and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury, and the tort is joint. If they shoot him independently, with separate guns, and he dies, the tort is still joint, for death cannot be apportioned. If they merely inflict separate wounds, and he survives, a basis for division exists, no matter how difficult the proof may be, and the torts are several." Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413, 442 (1937).

This test for determining joint tortfeasors, namely, whether the injury is divisible or indivisible, is that proposed in the Restatement Second of Torts which, summing up an entire chapter on "Contributing Tortfeasors" in the prior Restatement, set forth this criterion: "(1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes." Restatement, Second, Torts, § 433 A. Thus, those tortfeasors among whom damages cannot be apportioned under these rules are properly regarded as joint tortfeasors. This is a refinement of the first Restatement, which in § 879 entitled "Concurring or Consecutive Independent Acts" stated: "Except as stated in § 881, [concerning nuisances] each of two persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm, in the absence of a superseding cause." Restatement, Torts, p. 446, § 879. See also Comment thereto explaining with examples the scope of the rule. It should be noted that even in the earlier Restatement, concert of action was not required.

The weight of authority in Georgia is entirely consistent with this view. The Georgia Supreme Court, in recently deciding Register v. Stone's Independent Oil Distributors, Inc., 227 Ga. 123 ( 179 S.E.2d 68), implicitly ruled that concert of action is not required for a joint tort, because underlying the entire opinion is the court's presumption that the defendants, including a bus driver, a truck driver and an auto driver were joint tortfeasors in a fact situation involving injuries to one Bailey caused by the collision of their three independently driven vehicles. Accord, Southeastern Truck Lines, Inc. v. Rann, 214 Ga. 813 ( 108 S.E.2d 561); Eidson v. Maddox, 195 Ga. 641, 643 ( 24 S.E.2d 895) (both involving a collision of numerous drivers, treated by the court as joint tortfeasors.) Those cases continue the viewpoint on joint torts held by the court since at least 1921, when in deciding Gooch v. Georgia Marble Co., 151 Ga. 462 ( 107 S.E. 47) the court ruled that where one suffers an injury as a result of the concurring (but not necessarily concerted) negligence of two tortfeasors, that party may maintain a joint or several suit against them, and recovery in a joint suit will be supported if the negligence of both contributed to the injury although the degree of care owed to the party by the two defendants is not the same. Accord, Hopkins v. City of Atlanta, 172 Ga. 254 ( 157 S.E. 473). In Gooch, deceased was tripped by an obstruction placed by his employer the marble company, and after he had fallen was run over by a defective car of the railroad company. The widow sued both companies, and the court ruled that they were joint tortfeasors. No concert of action was present. Thus, in the often expressed view of the Georgia Supreme Court, concert of action is not required to constitute a joint tort.

This court has stated forcefully that concert is not required: "In this State, notwithstanding the law elsewhere, it is not necessary that there be intentional concert or simultaneous action among those sought to be held jointly liable for injury. All that is required is that negligent acts, although separate and independent, be found to have combined naturally and directly to produce a single injury. [Citations.] The statement in Close v. Matson, 102 Ga. App. 663 (2) ( 117 S.E.2d 251), cited by appellants, which intimates that a concert of action is required to find a joint tortfeasor relationship, is against the weight of authority and has been criticized as dictum." Stone's Independent Oil Distributors v. Bailey, 122 Ga. App. 294, 299 ( 176 S.E.2d 613). Accord, Gosser v. The Diplomat Restaurant, Inc., 125 Ga. App. 620 ( 188 S.E.2d 412) (a drunken restaurant guest who hit plaintiff-guest, and the restaurant failing to restrain the drunk, held joint tortfeasors); Mullis v. Chaika, 118 Ga. App. 11 ( 162 S.E.2d 448) (service station operator and customer, whose combined, though independent, acts of negligence injured plaintiff, held joint tortfeasors); Boner v. Soltero, 110 Ga. App. 517 ( 139 S.E.2d 162) (drivers of various autos held joint tortfeasors when their collision injured plaintiff.) In none of these last three cited cases was there any appearance of concerted action; in each of the three this court stated that persons whose separate acts of negligence naturally combine to produce a single injury are joint tortfeasors. This was also the approach in City of Buford v. Hosch, 104 Ga. App. 615 ( 122 S.E.2d 287) in which the court quoted from and approved an example from Restatement, Torts, § 879, wherein A negligently drives into C and harmlessly knocks him into the street but before he can arise he is negligently run over and injured by B; A and B are joint tortfeasors each wholly liable for C's damages.

Against the weight of Georgia authority discussed above, however, stand certain cases creating or appearing to create a conflict by adopting the opposite view, namely, that concert of action is required. One such case is our own recent decision in Bulloch County Hospital Authority v. Fowler, 124 Ga. App. 242 ( 183 S.E.2d 586). There, plaintiff's husband suffered a heart attack and was taken to the hospital. His doctor was called to come immediately, but dawdled on the way for an hour, chatting with a friend. Knowing that he had been summoned, the hospital refused plaintiff's urgent request to call for other help. The husband died. In plaintiff's suit against the doctor and the hospital seeking damages against them jointly on the basis of their concurring acts of negligence, this court held "there was no concert of action. The actions of the doctor and of the hospital were mutually independent. They were not joint tortfeasors. Separate verdicts will be required." Id., p. 246. This conclusion was in error, and we hold today that so much of the opinion in Bulloch County Hospital Authority v. Fowler, supra, as held that the defendants were not joint tortfeasors and that separate verdicts were required was incorrect and we expressly overrule it. In addition to citing numerous prior decisions of this court, Fowler relied for its ruling on three Supreme Court cases, Schnieder v. City Council of Augusta, 118 Ga. 610 ( 45 S.E. 459); Howe v. Bradstreet Co., 135 Ga. 564 ( 69 S.E. 1082); and Vaughn v. Burnette, 211 Ga. 206 ( 84 S.E.2d 568). Although those cases appear to require concert of action, they are distinguishable from the case at hand and from the Fowler fact situation. Schnieder and Vaughn both presented situations invoking nuisance concepts, and nuisance cases proceed under a different rule, which is that joint participants in the creation of a nuisance are not jointly and severally liable for the full total of plaintiff's damages, but only for their individual parts. Therefore, nuisance defendants are not joint tortfeasors in terms of several liability, but the rules applicable to them do not carry over to other tortfeasors. See Key v. Armour Fertilizer Works, 18 Ga. App. 472 ( 89 S.E. 593); Restatement, Torts, § 881. Howe is distinguishable also, because it was an attempt to sue defendants jointly for different publications of the same libel. The court's ground for its decision that the defendants were not joint tortfeasors was that republication of a libel is a separate and independent tort. This decision is wholly in line with the authorities and texts discussed above urging that the possibility of allocation of damages is the key issue: in Howe, each libel occurred in a different city, and plaintiff's different damages traceable to each libel should have been readily ascertainable.

Drs. Mitchell and Dr. Soria urge that Knight v. Lowery, 228 Ga. 452 ( 185 S.E.2d 915), indicates that the Supreme Court clings to the requirement of concert of action. They point to page 455 of the opinion in which, discussing liability of the driver who injured the boy and the physician alleged to have subsequently treated him negligently, the court said, "Here, the physician and the driver of the automobile did not act in concert to produce a single injury, and they are not joint tortfeasors. Rather, we conclude that they are successive tortfeasors..." The decision of the Supreme Court that the defendants were successive tortfeasors is eminently correct, and wholly in line with what we have written here, because a reasonable basis existed on which damages could be apportioned: the driver was liable for the initial injury and its subsequent aggravation, but the doctor was liable only for the aggravation caused by his alleged malpractice. Because the damages could be apportioned the defendants were not joint tortfeasors. On the other hand, we conclude that the court did not mean to indicate that concert of action was the sine qua non of a joint tort: to the extent to which the court's quoted sentence as written may seem to indicate that, we conclude that the use of the controversial legal phrase "in concert" was unintentional. In short, we do not read the holding in Knight v. Lowery, supra, to be in conflict with the earlier decisions of that court which held that concert of action was not required for a joint tort.

Without attempting to review each and every prior decision of this court on the subject of joint tortfeasors, it will suffice for us to state that the bulk of our decisions are consistent with the rule stated herein. E. g., Akin v. Randolph Motors, 95 Ga. App. 841, 847 ( 99 S.E.2d 358); Atlanta Newspapers, Inc. v. Hitchcock, 89 Ga. App. 322, 327 ( 79 S.E.2d 342); Joyce v. City of Dalton, 73 Ga. App. 209, 210 ( 36 S.E.2d 104); Locke v. Ford, 54 Ga. App. 322, 322-323 ( 187 S.E. 715); McGinnis v. Shaw, 46 Ga. App. 248, 250 ( 167 S.E. 533). Insofar as any prior decisions conflict with the rules herein adopted, the same are overruled.

It is our hope that what is written here today may serve to instill a greater degree of certainty into questions of joint torts. Too frequently the following "rules" have been 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.'" City of Buford v. Hosch, 104 Ga. App. 615 ( 122 S.E.2d 287); accord Smith v. Floyd County, 36 Ga. App. 554 (5) ( 137 S.E. 646); Scearce v. Mayor Council of Gainesville, 33 Ga. App. 411 ( 126 S.E. 883).

Such language has been productive of confusion because the two opposing rules are not stated in such a way as to distinguish them from each other, and the litigant urging the joint tort concept merely recites the second half of the quoted language and his opponent recites the first half. The rule henceforth will be 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 indivisible injury, and a rational basis does not exist for an apportionment of damages, the actors are joint tortfeasors. In actions for trespasses to property under the authority of Code § 105-2011 the jury may apportion damages among the trespassers. The rule pronounced today, being a general common law rule, is not intended to conflict with the continued operation of the statutory rule allowing apportionment of damages in the particular kinds of actions contemplated by Code § 105-2011 and not involved here.

To return to the appeal presently before us, what has gone before makes plain that the Drs. Mitchell and Dr. Soria may correctly be sued as joint tortfeasors. Though their alleged acts of negligence did not occur at the same time, they combined naturally and directly to create an urgent situation in which the missing portion of the catheter was thought to be in Gilson's blood stream, which required that he be subjected to further medical procedures. On these facts his subjection to medical procedures is not capable of apportionment, that is, so much for the negligence of Dr. Soria initially and so much for the negligence of Drs. Mitchell. Under plaintiff's theory of his case, the entire course of the procedures was required by the combined acts of the doctors, and he is entitled to sue them as joint tortfeasors.

Dr. Soria argues that doctors may not be joint tortfeasors with each other, and he cites Mullins v. Duvall, 25 Ga. App. 690, 693 ( 104 S.E. 513), wherein this court stated that where a physician sends another as his substitute, the second doctor is not the agent of the first, and the first is not liable for negligence of the second. All that case held was that a doctor is not liable on the basis of respondent superior for the torts of another doctor. The case lays down no rule — and there is none — that doctors may not be joint tortfeasors when they are alleged to have been concertedly or concurrently negligent.

With respect to the particular question raised by the enumeration of error, concerning which party has the right to the closing argument to the jury where there are multiple defendants and some but not all of them have introduced evidence, there is relatively little authority. However, such Georgia authority as is available compels the conclusion that the usual rule that a defendant presenting no evidence is entitled to speak last, e. g., Sutherland v. Woodring, 216 Ga. 621 ( 118 S.E.2d 482); American Casualty Co. v. Seckinger, 108 Ga. App. 262 ( 132 S.E.2d 794) yields to the right of plaintiff to close as to all defendants where some though not all defendants have presented evidence. King v. King, 37 Ga. 205, 216; Doster v. State, 25 Ga. App. 723 ( 104 S.E. 642). This is also the rule applied on these facts where defendants are specifically sued as joint tortfeasors. Co-Op Cab Co. v. Preston, 67 Ga. App. 580, 581 ( 21 S.E.2d 251). "The question for the court in all such cases, is, was there any evidence introduced for the defense, against the complainant's demand? If there was, then the complainant's solicitor is entitled to open and conclude the argument before the jury." King v. King, supra, p. 216.

Because these doctors were correctly sued as joint tortfeasors, plaintiffs had the right to open and close the argument to the jury as to all defendants. Improper denial of the right to open or conclude, where injury results, will work a reversal unless the verdict was demanded by the evidence. Milligan v. Milligan, 209 Ga. 14 ( 70 S.E.2d 459); Georgia Power Co. v. Puckett, 181 Ga. 386, 389 ( 182 S.E. 384); Phelps v. Thurman, 74 Ga. 837; Chapman v. Atlanta West Point R., 74 Ga. 547. A review of the trial transcript which was over 700 pages in length shows that the evidence at the trial authorized but did not demand a verdict for the defendants; and therefore reversal is in order because plaintiffs were denied the closing argument.

The Drs. Mitchell urge that any error as to closing argument, if the same results in reversal of the judgment, should not be deemed error as to them, because plaintiff closed as to them and only Dr. Soria's counsel spoke after plaintiff's closing. In essence, they ask that if plaintiffs be granted another trial, only Dr. Soria should be tried. Though we have located no case with precisely similar facts to these, the general rule is that a judgment against joint tortfeasors is indivisible and reversal as to one will entitle the other to a new trial (see Eckerd-Walton, Inc. v. Adams, 126 Ga. App. 210 ( 190 S.E.2d 490); Smith v. Nelson, 123 Ga. App. 712 ( 182 S.E.2d 332)), though a defendant who was found not liable on the merits will not necessarily be compelled to go to trial again merely because his co-defendants are granted reversals of judgments against them (see Ammons v. Horton, 128 Ga. App. 273 ( 196 S.E.2d 318)). Here we cannot say that the Drs. Mitchell were found not negligent on the merits at a proper trial. Plaintiff was deprived of the value of his joint tortfeasor theory as to all defendants; Dr. Soria argued last, to the inevitable benefit of all defendants; as will be discussed below, the jury were incorrectly instructed concerning the verdict as to both groups of defendants. We rule that his verdict is entire and inseparable and our reversal runs to all defendants. A further inequity of an opposite holding would be that should the judgment for the Mitchells stand and should Dr. Soria lose upon re-trial, he would have no right of contribution from the Mitchells and the question of their negligence on the merits will not have been determined in a properly tried case.

Concerning the Gilsons' fifth enumeration our ruling that the defendants were joint tortfeasors leads to the further conclusion that the trial judge erred in disallowing a joint verdict and in instructing the jury that if they found for plaintiffs, separate verdicts against the doctors would be required. Eidson v. Maddox, 195 Ga. 641, 643 ( 24 S.E.2d 895); Craven v. Allen, 118 Ga. App. 462 ( 164 S.E.2d 358).

What has been written answers Enumerations 4 and 5. Enumerations 1, 2 and 3 concern responses made by certain prospective jurors during voir dire examination. Because retrial will be required and it is unlikely that those specific situations would recur, no ruling is required. Code Ann. § 6-701 (b). See Williams v. State, 125 Ga. App. 9 (2) ( 179 S.E.2d 351). For a similar reason, we do not rule upon Enumeration 6 urging error in the trial court's having charged on accident. Since the evidence may not be the same upon a new trial, it is unnecessary to rule upon whether the evidence in this trial authorized the charge. See Tompkins v. West, 123 Ga. App. 459 (2) ( 181 S.E.2d 549).

Judgment reversed. Bell, C. J., Eberhardt, P. J., Quillian, Clark and Stolz, JJ., concur. Pannell and Deen, JJ., concur in the judgment. Evans, J., concurs specially.