Opinion
46119.
SUBMITTED APRIL 7, 1971.
DECIDED OCTOBER 4, 1971.
Third-party complaint. Fulton Civil Court. Before Judge Wright.
Ferrin Y. Mathews, for appellant.
Roland P. Smith, for appellees.
The allegations of the third-party complaint failed to show that it involved the same subject matter as the original action or that the defendant as third-party plaintiff was attempting to pass on to the third-party defendant all or part of the liability asserted against the defendant so that a recovery against the defendant would necessarily be followed by recovery for the defendant against the third-party defendant. Thus, even under the liberalized notice pleadings requirements of the Civil Practice Act, the third-party complaint was subject to a motion to dismiss.
SUBMITTED APRIL 7, 1971 — DECIDED OCTOBER 4, 1971.
W. C. Poss filed suit in the Civil Court of Fulton County against Jefferson McConnell. He alleged that McConnell owed him $835.80 on an account, a copy of which was attached as Exhibit "A" to the complaint. The exhibit was addressed to the original defendant, McConnell, and contained the entry: "Dr. Matthews Job, River Rd Roswell, Ga." Such exhibit then set forth charges in April and May of 1967 for flagstone and labor totaling $835.80.
The defendant filed an answer to the plaintiff's complaint setting forth two defenses. The first defense alleged that he was not indebted to W. C. Poss by reason of the fact that he was employed by Carol Mathews to erect a residence on Riverside Drive, Roswell, Georgia, and that the materials and labor recited in Exhibit "A" were used in construction of the residence; further, that "Carol Mathews is indebted to Jefferson McConnell in the sum of $4,395.98 and that any judgment found in this case against Jefferson McConnell should be paid by said Carol Mathews." The second defense recites the entering into of an agreement whereby McConnell would erect and construct a residence on property belonging to Carol Mathews, the construction price of $70,912.00, the deletion of $4,500 for plumbing, the additions and extras of $7,997.56, making a revised contract price of $74,409,56. Payments of $70,313.58 are alleged to have been made leaving a balance due by Carol Mathews to McConnell of $4,395.98. McConnell again contended in this defense that "any judgment found in this case should be paid by Carol Mathews."
The defendant then filed a third-party complaint against Carol Mathews. The third-party complaint recited the suit of Poss against McConnell and attached copies. Defendant/third-party plaintiff alleged that he was employed by Carol Mathews for the purpose of constructing a residence on real property owned by her. The recitations in the second defense of his answer, as above set forth, were again alleged substantially with respect to the resulting contract price and alleged unpaid balance due McConnell of $4,395.98. McConnell further alleged that he proceeded with the work, and at the time he had substantially completed construction of the residence, Carol Mathews terminated his services and prevented him from completing the construction of the residence. It was then alleged as follows: "That the said Carol Mathews is now indebted to Jefferson McConnell in the sum of $4,395.98 and that any judgment found in the original suit by W. C. Poss against Jefferson McConnell should be paid by the said Carol Mathews and this defendant, the third-party plaintiff, demands judgment against Carol Mathews, third-party defendant in the sum of $4,395.98, less any amount which this third-party defendant might pay to the original plaintiff in this case."
An ex parte order was entered by the trial judge ordering that Carol Mathews be made a party to the action and served with a copy of the third-party complaint. To the third-party complaint Carol Mathews filed her motion to strike and dismiss on the grounds that the third-party complaint fails to state a claim against the third-party defendant and does not allege a claim cognizable under Code Ann. § 81A-114 (Ga. L. 1966, pp. 609, 627; 1969, p. 979); further, that the third-party defendant is not secondarily liable to the original defendant/third-party plaintiff.
The trial judge overruled the motion to dismiss and, upon a certificate of immediate review being entered, appeal was taken to this court.
"At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Code Ann. § 81A-114 (a) (Ga. L. 1966, pp. 609, 627; 1969, p. 979). As pointed out in 2 Kooman, Federal Civil Practice, 214, § 14.02: "The absolute requirement of every third-party proceeding is that its purpose must be to impose upon the third-party defendant a liability for part or all of the liability asserted by the original plaintiff against the third-party plaintiff. A third-party action may be maintained only against one who is secondarily liable to the original defendant for part or all of the original plaintiff's claim. When a recovery by the plaintiff against the defendant would necessarily be followed by recovery for the defendant against the third-party defendant, then a third-party action is proper." 3 Moore, Federal Practice, 502, § 14.04, sets out that impleader is not permissible unless the conditions of Section 14 of the Federal Rules of Civil Procedure (identical in content to our Code Ann. § 81A-114) are met; "it is not a device for bringing into an action any controversy which may happen to have some relationship with it." Under the federal rule a defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third party as a substitute defendant). 3 Moore, Federal Practice 512, § 14.07; 605, § 14.15.
In one of the first Georgia cases construing the statute it was held: "Only a person who is secondarily liable to the original defendant may be brought in as a third-party defendant — as in cases of indemnity, subrogation, contribution or warranty." Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, 801 ( 165 S.E.2d 587). See Worrill v. Pitney-Bowes, Inc., 119 Ga. App. 258 ( 167 S.E.2d 236). In Bill Heard Chevrolet Co. v. G. M. A. C., 120 Ga. App. 328, 330 ( 170 S.E.2d 454), this court cited with approval the Colorado court's holding ( 314 P.2d 903) that: "Rule 14 (a) does not permit nor does it grant discretion to the court to implead when there are separate and independent controversies between the defendant and his desired third-party defendant."
In Koppers Co. v. Parks, 120 Ga. App. 551 ( 171 S.E.2d 639), this court recognized that the theory of secondary liability included not only indemnity, subrogation, contribution and warranty but also like claims. In such holding the court gave effect to the language "or otherwise." See Southern Concrete Co. v. Carter Constr. Co., 121 Ga. App. 573 ( 174 S.E.2d 447). This view has found comprehensive expression in Ins. Co. of North America v. Atlas c. Co., 121 Ga. App. 1, 4 ( 172 S.E.2d 632): "The rule permits the impleading of a third party who is secondarily liable over to the defendant for all or part of plaintiff's recovery, whether by indemnity, subrogation, contribution, express or implied warranty, or otherwise. [Citations omitted.] Where a single group or aggregate of operative facts is involved, impleader should be allowed despite a difference in the legal nature of the claims of the various parties." In the Koppers case, 120 Ga. App. 551, supra, third-party complaints were held to fall within the liberalized notice requirements of Code Ann. § 81A-108 (Ga. L. 1966, pp. 609, 619; 1967, pp. 226, 230). It was held that a third-party complaint is adequate if sufficient facts are alleged which upon proper proof would allow recovery by the third-party plaintiff from the third-party defendant where the subject matter of the third-party complaint is the same as that involved in the original action.
In this case the defendant's answer set out that the materials and labor for which recovery was sought in the main complaint were used in the construction of the residence of the third-party defendant. The third-party complaint prayed that any judgment found in the original suit against the defendant/third-party plaintiff be paid by the third-party defendant. Nothing otherwise contained in the third-party complaint could be construed to show that such third-party complaint involved the same subject matter or that the defendant is attempting to pass on to the third-party defendant all or part of the liability asserted against the defendant. Instead the third-party plaintiff is seeking affirmative relief in what appears to be a separate and independent controversy between himself and the third-party defendant. While recognizing the soundness of the rule expressed in Harper v. DeFreitas, 117 Ga. App. 236 ( 160 S.E.2d 260), here the third-party plaintiff would not be entitled to prevail under the facts alleged or any state of facts which could be proved in support of the third-party claim and hence there is no legal basis for recovery. See Poole v. City of Atlanta, 117 Ga. App. 432, 434 ( 160 S.E.2d 874). See also S. M. M. Realty Corp. v. Highlands Ins. Co., 123 Ga. App. 170 ( 179 S.E.2d 781). In such circumstances, the trial judge erred in overruling the motion to dismiss the third-party complaint.
The judgment must be reversed, but with direction that the third-party plaintiff be allowed 30 days in which to amend the third-party complaint to show a legal basis, if any, to sustain such complaint. See 3 Moore 957, § 15.10; Britton v. Atlantic C. L. R. Co., 303 F.2d 274.
Judgment reversed with direction. Jordan, P. J., and Evans, J., concur.