Opinion
44547.
ARGUED JUNE 2, 1969.
DECIDED OCTOBER 16, 1969.
Action for damages. Fulton Civil Court. Before Judge Tidwell.
Nall, Miller, Cadenhead Dennis, A. Paul Cadenhead, Baxter L. Davis, for appellant.
Neely, Freeman Hawkins, Albert H. Parnell, for appellees.
In the absence of a clear showing of abuse, this court will not control the trial judge's exercise of discretion in refusing to allow an intervention under Section 24 (b) (2) of the Civil Practice Act.
ARGUED JUNE 2, 1969 — DECIDED OCTOBER 16, 1969.
James B. Mayo brought an action for damages in the Civil Court of Fulton County against Jimmy Fletcher and Atlanta Flour Co., Inc. The complaint alleged that the defendant Fletcher, driving north on U.S. 41, negligently damaged the plaintiff's trailer while the plaintiff was stopped in between the north- and southbound lanes of U.S. 41 preparing to turn south; that the defendant Fletcher was an agent, servant and employee of the defendant Atlanta Flour Company. Recovery was sought for damages to the trailer and to the cargo therein.
The defendant filed an answer denying the material allegations of the complaint. The defendant Atlanta Flour Company filed a counterclaim which sought the recovery of damages for merchandise contained in the truck being driven by the defendant Fletcher and leased by Atlanta Flour Company. Subsequently Ryder Truck Rental, Inc., filed a motion to intervene as defendant and attached to the motion a proposed complaint and counterclaim. Intervention was sought on the grounds that Ryder Truck's claim was "similar or identical to that asserted by the defendant, Atlanta Flour Company and Jimmy Fletcher in that this claim by the intervenor involves questions of law and fact in common with the plaintiff and defendant." Ryder Truck's proposed counterclaim alleged that it owned the truck involved in the collision which was leased to Atlanta Flour Company and driven by the defendant Fletcher; that the plaintiff was guilty of certain described acts of negligence which resulted in damage to the truck and loss of rental thereof.
After hearing argument, the trial judge denied Ryder Truck's motion to intervene. Upon the entry by the trial judge of a certificate for immediate review, Ryder Truck appeals to this court.
The sole question for our determination is whether the trial judge properly denied the motion to intervene. Counsel for the appellant correctly concedes that Ryder Truck is not allowed to intervene as a matter of right under the provisions of Code Ann. § 81A-124 (a) (Ga. L. 1966, pp. 609, 633; 1967, pp. 226, 232; 1968, pp. 1104, 1108). Thus, the only ground for the allowance of this intervention are contained in Code Ann. § 81A-124 (b) which provides: "Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
This section is in substance identical to the so-called "permissive intervention" provision of Rule 24 of the Federal Rules of Civil Procedure. In Kauffman v. Kebert, 16 F. R. D. 225, the Federal court considered this provision under the following factual situation: the plaintiff had brought an action for damages resulting from an automobile collision against the defendant, the operator of another car who filed a counterclaim for his damages; the defendant's wife and son who were also injured in the collision sought to intervene over the objection of plaintiff. After discussing the effects of the intervenor's counterclaim and noting that the intervenor made no effort to defend the action but instead sought affirmative relief, the court pointed out that intervenors are generally required to join with either party and resist the claim of the other or oppose both. The decision then pointed out: "It seems that the applicants here are seeking a shortcut to a lawsuit. They have no interest in the main suit, not being bound by the result thereof, but it appears they desire to step aboard the present going lawsuit as a matter of convenience in the trial of their own case for damages against the plaintiff. They have a right to bring a separate suit. This however, should not be confused with the right to intervene." Kauffman v. Kebert, 16 F. R. D. 225, 228, supra. This reasoning had been followed in other cases. See for example Beard-Laney, Inc. v. Pressley, 18 F. R. D. 162, and Medd v. Westcott, 32 F. R. D. 25; also U.S. v. Third National Bank, 36 F. R. D. 7 (reversed on another ground, 390 U.S. 171).
However, there is a considerable body of authority holding that an intervenor may assert either a compulsory counterclaim or a permissive counterclaim. Switzer Bros. v. Locklin, 207 F.2d 483; Lenz v. Wagner, 240 F.2d 666. Nevertheless, we need not resolve this apparent conflict in authority. In construing the Georgia statute, it is enough that we hold that where an intervention is permissive the crucial determination to be made by the trial court, in its discretion, is whether the counterclaim will unduly delay or prejudice the existing parties. See 3B Moore's Federal Practice § 24.10 [4].
Here able counsel for the appellant concedes that there may be an additional issue concerning whether the negligence of the driver of the vehicle would, or would not, be chargeable to the intervenor Ryder Truck. In addition there would be a question as to the measure of damages that Ryder seeks in its counterclaim as opposed to that sought by the defendant Atlanta Flour Company. See Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F.2d 564. Of course, the discretion of the court in allowing or denying a motion to intervene is a legal one and should not be exercised arbitrarily or capriciously but, in the absence of a clear showing that the trial judge acted arbitrarily, this court should not control the trial judge's discretion in determining whether a permissive motion to intervene would unduly delay or prejudice the adjudication of the rights of the original parties. See Stadin v. Union Electric Co., 309 F.2d 912, and Edmondson v. State of Nebraska, 383 F.2d 123, 127.
In Nuesse v. Camp, 385 F.2d 694, relied upon by appellants, the trial judge failed to exercise his discretion in determining whether to allow an intervention and denied such motion based on erroneous legal theory. The U.S. Court of Appeals reversed on this ground. Here, the trial judge based his denial on the grounds that the intervention did complicate the proceedings and that the disadvantages of allowing the intervention outweighed the advantages. While the fact alone that the intervenor was seeking affirmative relief would not bar the intervention, it was a matter that the trial judge could, and obviously did, consider in determining whether the intervention might delay or prejudice the existing parties. As has been pointed out in the discussion of Rule 24 (b), the fact that an intervenor meets the requirements of a common question of law or fact does not automatically entitle him to be made a party. Degge v. City of Boulder, Colo., 336 F.2d 220; 3B Moore's Federal Practice § 24.10 [4], pp. 24-394 and cases cited.
We cannot hold that the trial judge, as a matter of law, abused his discretion in refusing to allow the intervention.
Judgment affirmed. Pannell and Evans, JJ., concur.