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Gosser v. Diplomat Restaurant Inc.

Court of Appeals of Georgia
Mar 3, 1972
188 S.E.2d 412 (Ga. Ct. App. 1972)





Third-party complaint. Fulton Superior Court. Before Judge Tanksley.

Long, Weinberg, Ansley Wheeler, Palmer H. Ansley, for appellant.

James H. Weeks, R. Lawrence Ashe, Jr., for appellees.

The third-party complaint was not subject to dismissal on any of the grounds urged against it. Hence, the trial judge did not err in overruling the motion to dismiss.


Norman J. Rubin filed a complaint in the Fulton Superior Court against the Diplomat Restaurant, Inc., d/b/a The Diplomat (hereinafter referred to as the Diplomat), and John Doe et al. The complaint alleged: that the plaintiff on January 22, 1969, was present as a business invitee in the Diplomat's place of business; that he was seated next to a table occupied by John Doe who was drunk, quarrelsome and insulting to other guests; that the Diplomat knew or should have known this in the exercise of ordinary care; that the Diplomat knew or should have known that John Doe was a danger from whom other guests required protection, but the Diplomat permitted John Doe to enter and remain on the premises and drink more alcoholic beverages; that the Diplomat was benefiting from the alcoholic consumption and was therefore ignoring the hazard and the well being of its other guests; that John Doe violently battered the plaintiff with his fists causing serious injuries.

The complaint further alleged: that the Diplomat made no attempt to stop the assault and battery despite the plaintiff's request for assistance prior to the assault and his repeated calls for help, all of which took place in view of a number of the Diplomat's employees and agents; that John Doe escaped apprehension because the Diplomat failed to call the police at plaintiff's request; that the Diplomat has failed and refused the plaintiff's request to obtain the true identity of John Doe; that the plaintiff has suffered great pain and will continue to suffer intermittent pain and loss of ability to work and labor as a result of the malicious assault and battery herein described; that the plaintiff has been hindered and prevented from performing his normal business and family duties and has incurred substantial medical expenses as a result of the injuries; that the plaintiff was greatly embarrassed by reason of the assault being inflicted upon him in a public restaurant in the presence of friends and other people. One paragraph of the complaint set out that plaintiff's reputation at work and among his associates had been hurt because he had been involved in a public and alcoholic brawl. The complaint also alleged that the plaintiff is entitled to recover from all defendants, jointly and severally, for actual damages, exemplary damages and his expenses incurred in the litigation. The plaintiff sought recovery against the defendants both jointly and severally.

The Diplomat answered the plaintiff's complaint and denied the substantial allegations thereof. Subsequently a third-party complaint was filed by the Diplomat which designated as third-party defendant Dale E. Gosser as to whom service was perfected under the Long Arm Statute, Code Ann. § 24-113.1 et seq. (Ga. L. 1966, p. 343; 1968, p. 1419; 1970, p. 443). The third-party complaint set out that Dale E. Gosser is the John Doe referred to in the defendant's complaint; that if it should be determined that the Diplomat is liable to the plaintiff that the Diplomat is entitled to contribution for one-half of the recovery pursuant to Code Ann. § 105-2012 (Ga. L. 1966, p. 433).

Gosser, the third-party defendant, filed a motion to dismiss the third-party complaint on the grounds that: the court has no jurisdiction since Code Ann. § 24-113.1 does not apply to third-party defendants because the third-party plaintiff did not have a cause of action against the third-party defendant unless and until a verdict and judgment was rendered in favor of plaintiff against the defendant/third-party plaintiff; that a portion of the complaint against the defendant/third-party plaintiff is for defamation of character which is expressly excluded by Code Ann. § 24-113.1 (b); that the third-party complaint discloses on its face that there is no joint action or joint concert of third-party defendant and third-party plaintiff.

The trial judge overruled the third-party defendant's motion to dismiss the third-party complaint and certified that such ruling be subject to review. The trial judge subsequently certified to this court that in his ruling he considered nothing outside the pleadings but dealt with the motion solely as a motion to dismiss.

1. In F. H. Ross Co. v. White, 224 Ga. 324 ( 161 S.E.2d 857), the Supreme Court has held that the right of contribution from a joint tortfeasor not sued in the action is a substantive right. In discussing Rule 14 of the Federal Rules of Civil Practice (substantially equivalent to our own CPA § 14), it has been pointed out: "Where the applicable state law permits contribution among joint tortfeasors regardless of whether plaintiff has sued them all in the first instance, it is clear that defendant can bring in other joint tortfeasors in order to enforce his claim for contribution. The fact that contribution may not actually be obtained until the original defendant has been cast in judgment and has paid does not prevent impleader; the impleader judgment may be so fashioned as to protect the rights of the other tortfeasors, so that defendant's judgment over against them may not be enforced until the defendant has paid plaintiff's judgment or more than his proportionate share, whichever the law may require." 3 Moore, Federal Practice 574, § 14.11. The obvious internment of the language contained in Code Ann. § 81A-114 (Ga. L. 1966, pp. 609, 627; 1969, p. 979) is to allow the impleading of one "who is or may be liable to him [the defendant] for all or part of the plaintiff's claim against him." (Emphasis supplied.) Thus, the effect of impleader practice is to accelerate liability. 3 Moore, Federal Practice, 531, 551, § 14.08, 14.10.

We can find no valid basis, in a case of this nature, to disallow the utilization of the Long Arm Statute ( Code Ann. § 24-113.1 et seq.) in a third-party claim. See for example, Verner v. Moran Towing c. Co., 258 F. Supp. 169, 170; Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 585. Here the tortious acts out of which the right to contribution arose were alleged to be committed in this State by a nonresident of the State. This would clearly fall within the purview of Code Ann. § 24-113.1 (b).

The holding in Register v. Stone's Independent Oil, 227 Ga. 123, 126 ( 179 S.E.2d 68), that an action to recover contribution is in the nature of an independent suit which can be maintained only in the county of the residence of the alleged joint tortfeasor, does not conflict with what is here held. The effect of the Long Arm Statute is to place the venue of the third-party complaint in the county where the tortious act occurred, thus making a nonresident tortfeasor amenable to suit in such county.

2. Under our Civil Practice Act, on motion to dismiss, the pleading attacked is construed in its most favorable light. Koppers Co. v. Parks, 120 Ga. App. 551, 554 ( 171 S.E.2d 639). The third-party defendant contends the third-party complaint should be dismissed because a paragraph of the plaintiff's complaint seeks to recover for defamation of character. It is therefore urged that the third-party complaint seeks contribution for an act which is expressly excluded from the Long Arm Statute. Code Ann. § 24-113.1 (b).

Appellee argues that the plaintiff in open court expressly renounced any allowance or damages for defamation. Be that as it may, the motion to dismiss was addressed to the complaint as a whole and since the third-party complaint (or for that matter the plaintiff's petition) is not solely involved with the action for defamation of character, it is not subject to a motion to dismiss. Robinson v. Reward Ceramic Color Mfg., 120 Ga. App. 380 (1) ( 170 S.E.2d 724).

3. It is urged that plaintiff's petition (on which the third-party complaint is based) discloses that the third-party plaintiff and third-party defendant are not joint tortfeasors; thus, the defendant/third-party plaintiff cannot seek contribution from the third-party defendant. A careful examination of the complaint leads us to the inescapable conclusion that it does not affirmatively show a lack of joint action or joint concert between the third-party plaintiff and the third-party defendant.

It is well settled that: "An owner of premises is liable to a guest for injuries inflicted by the tortious act of another guest when the owner has reason to anticipate the misconduct of the guest inflicting the injury." Ga. Bowling Enterprises v. Robbins, 103 Ga. App. 286 ( 119 S.E.2d 52). See Moone v. Smith, 6 Ga. App. 649 (1) ( 65 S.E. 712); Savannah Theatres Co. v. Brown, 36 Ga. App. 352 ( 136 S.E. 478); Hall v. Davis, 75 Ga. App. 819 ( 44 S.E.2d 685); Adamson v. Hand, 93 Ga. App. 5 ( 90 S.E.2d 669). Persons whose separate acts of negligence combine to produce single injury may be sued jointly although owing different duties toward the plaintiff. Gooch v. Ga. Marble Co., 151 Ga. 462 ( 107 S.E. 47); Hopkins v. City of Atlanta, 172 Ga. 254 (1) ( 157 S.E. 473). See Scearce v. Mayor c. of Gainesville, 33 Ga. App. 411 (3) ( 126 S.E. 883). "Where concurrent causes operate directly in bringing about an injury, there can be a recovery against one or all of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause; for if all acts of negligence contributed directly and concurrently in bringing about the injury, they together constitute the proximate cause." Adams v. Jackson, 45 Ga. App. 860 (2) ( 166 S.E. 258). See Tallman v. Green, 74 Ga. App. 731, 734 ( 41 S.E.2d 339); Doss v. Miller, 87 Ga. App. 230, 234 ( 73 S.E.2d 349).

The third-party complaint was not subject to dismissal and the trial judge properly overruled the motion to dismiss.

Judgment affirmed. Jordan, P. J., and Evans, J., concur.

Summaries of

Gosser v. Diplomat Restaurant Inc.

Court of Appeals of Georgia
Mar 3, 1972
188 S.E.2d 412 (Ga. Ct. App. 1972)
Case details for

Gosser v. Diplomat Restaurant Inc.

Case Details


Court:Court of Appeals of Georgia

Date published: Mar 3, 1972


188 S.E.2d 412 (Ga. Ct. App. 1972)
188 S.E.2d 412

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