Moon v. Price

¶4HUTCHESON, Chief Judge.

¶5Brought up on an agreed statement of facts,1 this appeal tests for error in law the rulings and actions of the district judge in (a) refusing, before trial and judgment, to dismiss the cause or, in the *796alternative, require plaintiff to make an election between the prosecution of Civil No. 751, the suit she had brought against Powell and appellant, and Civil No. 756, the one she had brought against the United States, as appellant’s employer, and (b) in refusing, after trial and judgment, to hold that the judgment plaintiff had, on July 6th, obtained against the United States in No. 756, was, under Sec. 2676, Title 28 U.S.C.A.,2 a complete bar to the one she had obtained against appellant on June 2nd, Civil No. 751. Quoting from United States v. Lushbough, 4 Cir., 200 F.2d 717, 721:

“The District Court having awarded a judgment in favor of Lushbough in his action against the United States, could not in the face of the explicit provisions of the act order judgment against Hoffman [the Government’s employee] in favor of Lushbough in the same action”,

¶6appellant insists that the same rule applies here.

¶7The appellee, in her turn, citing and relying on U. S. v. First Second Bank of Utah, 10 Cir., 208 F.2d 424, and the fact that her judgment was sought and obtained against the employee before judgment was entered against the United States in her separate suit against it, insists that the facts of this case completely differentiate it from those in the Lushbough case, for there the employee was not sued by the plaintiff in a separate suit, but impleaded by the United States as a third party defendant in the suit plaintiff had brought against it.

¶8To appellant’s contention that, under Georgia Code, Secs. 3-601 and 3-607, requiring plaintiff to elect between two actions at the same time for the same cause and against the same party, and the Georgia decisions, Railway Express, Inc. v. McBroom, 61 Ga.App. 223, 6 S.E.2d 460; Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860, and Darling Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.2d 701, holding that where the liability of the master is purely derivative, a judgment on the merits in favor of the agent and servant is res judicata in favor of the principal or master, though he was not a party to the action, it was error to deny appellant’s motions, appellee replies: (1) that this contention is in effect that under Georgia law there can be only one satisfaction of the same damage; (2) that there has been no satisfaction of either judgment held by Mrs. Price; (3) that in any event the present appeal involves only the judgment against the servant; and (4) that there being no complaint of the finding of the jury that the appellant was guilty of negligence and liable to the plaintiff, there is, there can be, no basis for the claim here made that appellant was injured by the entry of judgment on the verdict so finding.

¶9Thus appellee brings sharply into focus the real apprehension of counsel for appellant, who was also counsel for the United States, which, though not put clearly forward, lurks in the record. This is that unless the judgment against appellant is reversed and set aside, the plaintiff will have two judgments, and may obtain two satisfactions, for the same injury.

¶10We think it plain that, under the rule prevailing in Georgia, and generally elsewhere,3 that there can be but one satisfaction of the same damage or injury, appellant’s apprehension that because two judgments have been separately entered in favor of the same plaintiff for the same injury, against the employer in one case, and against the employee *797in the other, the plaintiff will, unless the judgment against appellant is reversed, be allowed a double satisfaction, is wholly without foundation. On the contrary, the satisfaction of either of the judgments will constitute a complete satisfaction of the other.

¶11No reversible error having been made to appear, the judgment is affirmed.