JAMES C. HILL, Circuit Judge:
This appeal raises two questions, each as troublesome for us today as they have been
A brief review of the facts giving rise to this appeal illustrates the problem. On September 12, 1975, a Greyhound bus and a truck owned by Cobb County collided. As a result of the accident, several bus passengers brought suits against Greyhound for the injuries they had sustained. Before most of the suits were tried, however, Greyhound settled the claims.
Cobb County's res judicata defense stems from a suit brought against Greyhound by Dunn, a passenger at the time of the accident. Upon being sued by Dunn, Greyhound filed a third party complaint against Cobb County seeking to recover the damage to its bus and contribution for the claim asserted by Dunn. Although Greyhound settled the claim by Dunn, the third-party complaint went to trial. The jury subsequently apportioned negligence between Greyhound and Cobb County, and judgment for $10,000 was entered for Greyhound. However, the court granted Cobb County's motion for judgment notwithstanding the verdict on Greyhound's claim for contribution.
Three months after judgment was entered in the Dunn suit, Greyhound filed this diversity action for contribution from Cobb County on other settlements which had, by then, been paid by Greyhound. Because the Dunn judgment conclusively established Cobb County's liability as a joint tortfeasor, Greyhound asked only that Cobb County make contributions with respect to the settled claims.
The district court granted Greyhound's request. Rejecting the defenses asserted by Cobb County, the court held that res judicata did not bar Greyhound's claim for contribution and that Greyhound's active negligence was likewise no bar to contribution. Greyhound Lines, Inc. v. Cobb County, Georgia, 523 F.Supp. 422 (N.D.Ga.1981). The district court granted summary judgment for Greyhound and ordered Cobb County to contribute almost $28,000 toward payment of the settled claims. Cobb County now appeals. We affirm.
I. RES JUDICATA
In 1846, the principles of res judicata were first used by the Georgia courts to preclude a party from relitigating a previously adjudicated claim. Bostwick v. Perkins, 1 Ga. 136 (1846). The 1910 Civil Code later codified the common law rule as it was explained in Watkins v. Lawton, 69 Ga. 671 (1882). Ga.Code § 4336 (1910). Today's statutes mirror the 1910 provisions.
Ga.Code § 110-501 (1978).
Section 110-501, as it has been construed by the courts of Georgia, requires a party pleading res judicata to satisfy three elements. First, the party against whom the doctrine is invoked must be the same or one in privity with a party to the prior adjudication. Second, there must be an identity of the cause of action in the two suits. And third, there must be an adjudication by a court of competent jurisdiction. Lewis v. Price, 104 Ga.App. 473, 122 S.E.2d 129 (1961).
Two of the three requisites of res judicata are clearly present. The subsequent suit by Greyhound is between the same parties and there is an adjudication by a court of competent jurisdiction.
A. The Applicable Standard
The district court held that the claims for contribution constitute a cause of action which is separate from the claim for property damage upon which Greyhound obtained judgment in the Dunn suit. Cobb County argues that the district court erred in applying the "same cause of action" test to these claims. The correct analysis, Cobb County asserts, is whether there is an "identity of subject matter." Cobb County construes recent Georgia Supreme Court decisions as rejecting the "same cause of action" test in favor of one requiring only an "identity of subject matter." Those recent Georgia Supreme Court decisions are Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977), and Hill v. Wooten, 247 Ga. 737, 279 S.E.2d 227 (1981).
Those cases, however, are not as broad as Cobb County would have us read them. Pope involved a party's failure to present a state law claim in a federal suit where the state claim could have been heard under the federal court's pendent jurisdiction. The Pope Court decided only that where "the federal court would have retained jurisdiction of the pendent state claims had they been raised, then a subsequent suit in state court would be barred by res judicata ...." 240 Ga. at 179, 240 S.E.2d at 243 (emphasis in original).
Hill v. Wooten is more to the point. In that case Wooten attempted to avoid an adverse judgment in federal court on his civil rights claims by suing the same defendant and the defendant's bondsman in state court on claims of assault and breach of bond of office. The Georgia Supreme Court held that res judicata barred the state law claims. 247 Ga. at 738, 279 S.E.2d at 229. Again, however, the Georgia Court decided only that the federal court would have heard the assault and breach of bond claims under its pendent jurisdiction had those claims been presented. The rule laid down in Pope thus required the Hill Court to give the federal court judgment res judicata effect.
Neither Pope nor Hill call for the abandonment of the "same cause of action" analysis which has been employed by Georgia courts without deviation. See, e.g., Brown v. Brown, 212 Ga. 202, 91 S.E.2d 495 (1956) (res judicata applies only to same cause of action); Woods v. Delta Airlines, Inc., 237 Ga. 332, 227 S.E.2d 376 (1976) (res judicata not applicable to different causes of action).
B. Cause of Action Analysis
For res judicata to bar the contribution claims in this case the same cause of action must have been previously adjudicated. In the prior suit between Greyhound and Cobb County, the Dunn action, Greyhound recovered for damages to its bus. Here, Greyhound seeks contribution for claim settlements
Before 1966 a tortfeasor could not seek contribution from a joint tortfeasor unless they were sued jointly, judgment was rendered against both of them, and one paid more than his pro rata share of the judgment. Mashburn & Co. v. Dannenburg Co., 117 Ga. 567, 44 S.E. 97 (1903); Autry v. Southern Railway, 167 Ga. 136, 144 S.E. 741 (1928). Where joint tortfeasors were not bound by a common judgment, the Georgia courts would not hear and determine claims between those in pari delicto. In 1966 the Georgia legislature made two significant changes in that state's rules of contribution. First, the General Assembly eliminated the requirement that the tortfeasor from whom contribution is claimed be one against whom judgment had been entered. Ga.Code § 105-2012(1) (1978). Thus, a tortfeasor can now assert a claim for contribution against a joint tortfeasor who had not been sued by the original plaintiff. McMichael v. Georgia Power Co., 133 Ga.App. 593, 211 S.E.2d 632 (1974).
The state legislature's second modification dealt with third party practice in Georgia. With the adoption of the Civil Practice Act in 1966 the Georgia lawmakers permitted a tortfeasor to bring in as a third party defendant one "who is or may be liable to him for all or part of the plaintiff's claim against him." Ga.Code § 81A-114(a) [CPA § 14] (1978). (emphasis added). This provision meant that one tortfeasor could implead a second joint tortfeasor without a judgment's having been entered against the former. Gosser v. Diplomat Restaurant, Inc., 125 Ga.App. 620, 188 S.E.2d 412 (1972). In short, a defendant tortfeasor after 1966 has both a substantive right and procedural mechanism to assert contribution claims against joint tortfeasors.
The 1966 changes have an important bearing upon the present action. For it seems that Greyhound might have sued Cobb County for contribution in the Dunn suit.
The Georgia Supreme Court has held that a third party complaint for contribution is in the nature of an independent suit. Register v. Stone's Independent Oil Distributors, Inc., 227 Ga. 123, 179 S.E.2d 68 (1971). As an independent action, the third party complaint must satisfy separate venue requirements, Id. at 126, 179 S.E.2d at 71, and meet its own statute of limitations. Evans v. Lukas, 140 Ga.App. 182, 230 S.E.2d 136 (1976). The Georgia Court of Appeals explained the result in Evans as follows:
Id. at 184, 230 S.E.2d at 138 (quoting Anno., 57 A.L.R.3d 867 (1974)). Because the contribution claim accrues later than the property damage claim, that is, when judgment is entered on the principal suit, and is actually an independent claim, res judicata does not bar the present suit by Greyhound for contribution.
II. ACTIVE NEGLIGENCE AND CONTRIBUTION
Like most states, Georgia did not recognize a common law right of contribution or of indemnity between joint tortfeasors. Dent v. King, 1 Ga. 200 (1846).
The Georgia courts, in adopting and applying the English rule, did not follow those restrictions. Instead, Georgia attempted to do justice between the tortfeasors by allowing a party whose negligence was passive to seek indemnification from the party whose active negligence caused the harm. Central of Georgia Railway v. Macon Railway & Light Co., 140 Ga. 309, 78 S.E. 931 (1913); see 24 Mercer L.Rev. 697 (1973). Contribution, on the other hand, was provided for by the Georgia legislature in 1863. Ga.Code § 3008 (1863).
Unfortunately, the Georgia courts occasionally merged the active/passive negligence rule into one which seemed to cover both indemnification and contribution. See, e.g., Central of Georgia Railway v. Macon Railway & Light Co., 140 Ga. 309, 78 S.E. 931 (1913); Peacock Construction Co. v. Montgomery Elevator Co., 121 Ga.App. 711, 175 S.E.2d 116 (1970); Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973). From these
First, any state decisions handed down before 1966 are unpersuasive. The enactment in that year of Ga.Code § 105-2012 expressly abrogated the common law rules regarding contribution in Georgia. We, therefore, disregard the confused language in the Central of Georgia Railway case.
The final case which Cobb County cites for the proposition that Georgia law does not allow contribution between actively negligent tortfeasors is Peacock Construction Co. v. Montgomery Elevator Co., 121 Ga.App. 711, 175 S.E.2d 116 (1970). The court of appeals in Peacock, however, held that § 105-2012(1) did not apply because the accident there occurred in 1964, two years before the effective date of the statute. Id. at 713, 175 S.E.2d at 118. The court then remanded the case to the trial court for a determination as to whether the plaintiff might have a claim for indemnification based on the active/passive negligence doctrine. Id. Peacock thus has no bearing upon the present case.
Furthermore, whether or not the active/passive negligence exception to the common law rule prohibiting indemnification between joint tortfeasors survived the 1966 legislation is of no moment to this court. The past and present vitality of that dichotomy derives only from the doctrine of indemnification. The Georgia cases which correctly analyze the contribution issue without reference to active/passive negligence theories are legion. See, e.g., Georgia Southern & Florida Railway v. Odum, 152 Ga.App. 664, 263 S.E.2d 469 (1979); McMichael v. Georgia Power Co., 133 Ga.App. 593, 211 S.E.2d 632 (1974); Gosser v. Diplomat Restaurant, Inc., 125 Ga.App. 620, 188 S.E.2d 412 (1972).
Greyhound's claim here is for contribution. The active/passive negligence doctrine, therefore, does not apply. We hold that Greyhound's active negligence does not bar its contribution claim under Georgia law and likewise does not bar the claim in this diversity action.