dissenting.
I respectfully dissent, as I cannot agree with Division 1 of the majority opinion. The majority concludes joinder was improper because the defendants were not joint tortfeasors and “[t]he two separate accidents are insufficiently connected to constitute a ‘series of occurrences’ giving rise to plaintiff’s claims.”
No bright-line rule exists regarding permissive joinder, and in my view, this was an appropriate case for permissive joinder of the two defendants and the application of OCGA § 9-11-20 (a). Robinson’s claims arose out of a “series of occurrences”: a collision with a Brinks truck on December 31, 1990, and a collision with a vehicle driven by Brinks’s co-defendant, Cowling, approximately four months later, in April 1991. From this series of occurrences, common questions of law and fact arose regarding the nature, extent, and causation of her injuries, the damages attributable to them, and which party or parties might be liable for them. The statute provides that in those circumstances, defendants may be joined and “[j]udgment may be given for one or more of the plaintiffs according to [the defendants’] respective liabilities.” That is exactly what occurred here.
It is true that each independent claim must satisfy constitutional venue provisions. This need not be our concern, however, because the issue raised by the joinder was the trial court’s jurisdiction over Cowling. Brinks was a “resident” of Muscogee County, and it admitted the court had jurisdiction over it. Brinks therefore has no standing to raise this issue. Cowling has not appealed the judgment against him, and thus this issue is not properly before us.
Ryder Auto. Leasing Co. v. Tates, 112 Ga. App. 18 (143 SE2d 411) (1965), is cited by Brinks as authority for its contention that it may raise this issue. This reliance upon Ryder is entirely misplaced. The Ryder court authorized a challenge to service on a co-defendant because in that case the appellant was a non-resident party and would have been entitled to remove the action to federal court if its co-defendant had not been served properly. That is obviously not the case here.
Further, even if joinder were improper, as urged by the majority, I cannot see any harm to Brinks resulting from the first trial that would not necessarily also recur at a second trial. Retrial as to Brinks *872would necessarily take place in Muscogee County, the county of residence of Brinks, where the first trial was held. Evidentiary matters relating to the Cowling accident would have to be brought into the retrial because the plaintiff’s doctors cannot separate the two accidents in terms of causation of plaintiff’s injuries. A separate verdict against Brinks in a definite amount would be returned by the jury, just as it was in the first trial. This is exactly the result sought by Brinks in arguing for severance on the ground that it and Cowling were not joint tortfeasors.
The issue of whether the plaintiff’s injuries are indivisible so as to render the defendants joint tortfeasors is immaterial here. The issue was explored by the trial court only insofar as it pertained to how the trial should proceed. The plaintiff suffered neck and back injuries, a permanent limp, and severe depression. Her treating psychologist testified both on deposition and at trial that he could not apportion between the two wrecks responsibility for the injuries he treated. Her neurologist testified similarly on deposition. Faced with this evidence that damages could not be apportioned rationally, the trial court allowed a joint trial to proceed, taking the position that although some of the plaintiff’s injuries may have been apportionable, at least her mental injuries were indivisible and incapable of apportionment. At trial, Brinks offered the testimony of a psychologist that he was able, on a rational basis, to apportion the plaintiff’s mental injuries. The jury returned a verdict apportioning damages between the defendants.
In my view, the approach taken by the trial court was both fair and correct. It also appears to me to be in harmony with and analogous to the procedure recently prescribed by the Georgia Supreme Court in Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616 (423 SE2d 659) (1992), dealing with a similar issue involving crashworthiness and enhanced injuries, in which a similar question was contested.2 In Polston, the plaintiff was severely injured in an automobile crash and brought suit against the driver of the other car. She also sued several car dealers and the car’s manufacturer, alleging that the design of her car enhanced her injuries. Responding to a certified question from the Eleventh Circuit regarding the burden of proving apportionment of damages among the defendants, the Supreme Court held that the plaintiff bears the initial burden of proving a prima facie case, at which point the burden “shifts to the defendant *873which wishes to limit its liability to demonstrate a rational basis for apportioning the liability for the injuries.” Id. at 619.
Decided December 5, 1994 Reconsideration denied December 20, 1994 Self, Mullins, Robinson & Marchetti, Richard A. Marchetti, for appellant. Charles A. Gower, Denney, Pease, Allison, Kirk & Lomax, John W. Denney, Taylor & Harp, Jefferson C. Callier, for appellee.Polston indicates recognition that situations arise in which the question of the indivisibility of the injuries to the plaintiff is exactly the point in issue. In reaching its conclusion in Polston, the Supreme Court drew on the Restatement Second of Torts and case law from other jurisdictions. The court also noted that prior Georgia decisions, including Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff'd 233 Ga. 453 (211 SE2d 744) (1975), indicate that Georgia law had long been moving toward and pointing in the direction taken in Polston. I believe the trial court in this case read those sign posts correctly, and it approached this difficult issue with fairness and common sense.
Since I agree with the majority that none of Brinks’s other enumerations has merit, I would affirm the judgment in this case.
The Supreme Court noted that “crashworthiness” cases are often referred to as “second collision” cases, to refer to the passenger’s collision either with interior parts of the vehicle or with the ground, after the initial impact with another vehicle. Polston, supra at 619, n. 2. This interesting aside demonstrates graphically the factual similarities between Polston and cases such as this, involving actual second collisions.