McCarthy v. Combs , 78 Ga. App. 426 ( 1948 )

Where a widow brought a suit jointly against two defendants for the wrongful death of her husband, charging that her husband's death was proximately caused by the concurrent negligence of the defendants, and the jury trying the case returned a verdict for the plaintiff in a stated amount against the two defendants "share and share alike," this was in effect a several verdict for one-half the amount stated against each of the defendants. See Glore v. Akin, 131 Ga. 481 (1) (62 S.E. 580).

DECIDED DECEMBER 4, 1948. REHEARING DENIED DECEMBER 16, 1948. The defendant in error, Lula Combs, hereinafter referred to as the plaintiff, brought an action in the Superior Court of Richmond County, against the plaintiffs in error, Joseph McCarthy and W. F. Miles, hereinafter referred to as the defendants, for the death of her husband, which resulted from the collision of the automobiles being driven by each of the defendants with a wagon in which the plaintiff's husband was riding on the highway leading from Augusta to Thomson.

The jury returned a verdict for the plaintiff in the following language: "We, the jury, find for the plaintiff in the amount of $3112.50 against the two defendants share and share alike." A judgment was entered thereon against the two defendants jointly. They filed a motion in arrest of judgment, which was answered by the plaintiff. Upon the hearing of the motion in arrest of judgment the trial court denied the same, and this judgment is assigned as error. The instant tort action is one for personal injuries as contra-distinguished from one for trespass on property; and Code § 105-2011, providing that, where several trespassers are sued jointly, the jury may in their verdict specify the particular damages to be recovered of each, does not apply (General Oil Co. v. Crow, 54 Ga. App. 139 (5) 187 S.E. 221), as this section has been held to apply only to trespass on property. See McCalla v. Shaw, 72 Ga. 458.

The common-law rule, to the effect that, where several defendants are shown to be liable as tort-feasors, the jury shall assess damages against all of them jointly in one amount, is of force in this State. See Gazaway v. Nicholson, 190 Ga. 345 (9 S.E.2d 154).

This being a case for personal injuries, a several verdict against the joint defendants is illegal. See McCalla v. Shaw, supra; also Glore v. Akin, supra, which is very similar to the case at bar. The verdict in the Glore case was in favor of the plaintiff against the two defendants in a certain amount "to be divided equally between them." The verdict in the instant case was in favor of the plaintiff against the two defendants in a certain amount "share and share alike." We think that the Glore case is so much in point as to be controlling in the instant case, and that there is no real difference between the meaning of the phrases, "to be divided equally between them" and "share and share alike," as used in these two verdicts. In the Glore case, the phrase used was held to mean that the $300 verdict rendered by the jury was a several verdict of $150 against each defendant. In view of that construction, we are constrained to hold that the phrase, "share and share alike," means the same thing in the instant case and must have the same legal effect. Headnote 1 of the Glore case is as follows: "Where suit was brought jointly against two defendants for malicious prosecution, and a verdict was rendered against them for a stated amount, ``to be equally divided between them,' this was in effect a several verdict for one-half the amount stated against each of the defendants, and was not legal."

The judgment of the trial court denying the motion in arrest of judgment is therefore error.

Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.