See Smithloff v. Benson, 173 Ga. App. 870, 877 ( 328 SE2d 759) (1985). This case is factually on point with Hyde v. Klar, 168 Ga. App. 64 ( 308 SE2d 190) (1983). In that case, we reversed the dismissal of a third-party complaint brought by Hyde, the defendant driver, against Klar, the driver of the car in which the injured plaintiff was a passenger.
This appeal followed. See OCGA § 51-12-32 (a) ("[w]ithout the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person . . . and release therefrom"); Hyde v. Klar, 168 Ga. App. 64, 65 ( 308 SE2d 190) (1983) ("`joint trespasser' is synonymous with `joint tortfeasor'") (citation omitted). Greenhorne challenges the trial court's application of the res judicata doctrine to its contribution claim, relying on Scott v. Rakestraw and arguing that a contribution claim is never a compulsory cross-claim that must be asserted in an underlying action:
OCGA § 51-12-32 refers to "joint trespassers," which is synonymous with "joint tortfeasors." Hyde v. Klar, 168 Ga. App. 64, 65 ( 308 S.E.2d 190) (1983). The court reasoned that the only loss to Jecon was that covered by its contract with SLM, that Jecon therefore had no tort claim against SLM, and that as a result SLM could not be a joint tortfeasor with Alcoa. For SLM to be considered a joint tortfeasor with Alcoa, there must be both a tort and a manner in which both could be considered liable.
In view of our disposition of this appeal in Division 2, we need not address Bundrage's assertion that the medical care providers, as third-party defendants, were parties to the action sufficient to defeat Standard Guaranty's motion. See, however, OCGA § 9-11-14 (a); Hyde v. Klar, 168 Ga. App. 64 ( 308 S.E.2d 190). 4.
"[T]he right of contribution from a joint tortfeasor . . . is a substantive right. [Cit.]" Hyde v. Klar, 168 Ga. App. 64, 65 ( 308 S.E.2d 190) (1983). Thus, although Sizemore was "as much liable" as AAA on the joint and several judgment, AAA was "as much liable" as Sizemore thereon. It follows that the joint and several judgment would have bearing on the value of AAA. Thus, that joint and several judgment would constitute a liability of AAA in the full amount thereof, less AAA's right to contribution, if any, against Sizemore.
"Joint trespasser" is synonymous with "joint tortfeasor." Hyde v. Klar, 168 Ga. App. 64, 65 ( 308 S.E.2d 190) (1983). The summary judgment motion was premised on the theory that Wilson was estopped to deny his negligence was equal to or greater than Norfolk's because of Norfolk's verdict in his suit.
If Benson could show that the estate would be liable to him in the event Benson was found to be liable under Smithloff's main claim against Benson, then Benson could have availed himself of the liberally construed impleader provisions of OCGA § 9-11-14 (a), which permit, under certain circumstances, a defendant to bring in a third party. See Hyde v. Klar, 168 Ga. App. 64 ( 308 S.E.2d 190) (1983). Also, if Benson could show that without the presence of the estate, he could not obtain complete relief in the determination of his counterclaim against Smithloff, the court could have ordered that the estate be brought in as a defendant in counterclaim under the provisions of OCGA § 9-11-13 (h).
In light of the dearth of reversible error and the jury verdict in favor of appellee, the denial of appellant's motion to strike appellee's third-party complaint is moot. See Hyde v. Klar, 168 Ga. App. 64 ( 308 S.E.2d 190) (1983). Judgment affirmed. Banke, C. J., and Pope, J., concur.
Although a defendant is not generally permitted to offer a substitute defendant by third-party complaint, a third-party complaint is nevertheless maintainable under OCGA § 9-11-14 (a) against a joint tortfeasor for contribution. See Hyde v. Klar, 168 Ga. App. 64 ( 308 S.E.2d 190) (1983). See also Marchman Sons v. Nelson, 251 Ga. 475 ( 306 S.E.2d 290) (1983). If appellants should be found liable to the plaintiffs for negligently failing to protect their son from the unruly conduct of another patron which commenced inside appellants' premises but continued in the common area controlled by appellees, and appellees should be determined to be contributorily negligent in failing to provide reasonable security for customers in the common area, then appellants would be entitled to contribution from the appellees.
Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property . . ." OCGA § 51-12-32 (a). This statute expressly permitted the railroad to settle the claims against it without prejudicing its substantive right to seek indemnity from Mobil in the present suit. Hyde v. Klar, 168 Ga. App. 64 ( 308 S.E.2d 190) (1983); Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179 ( 279 S.E.2d 477) (1981). See generally Marchman Sons, Inc. v. Nelson, 251 Ga. 475 ( 306 S.E.2d 290) (1983).