S. M. & M. Realty Corp. v. Highlands Insurance

Hall, Presiding Judge.

S. M. & M. Realty Corporation leased restaurant premises to Zanac, Inc. Under the terms of the lease, lessee accepted the premises "in their present condition as suitable for the use of tenant.” It further agreed to make all repairs except to the roof and outer walls and to "be liable for and hold lessor harmless on account of any damage or injury to the person or property of the lessee.” Within six weeks, the premises were partially destroyed by a fire which apparently originated in a gas cooking grill and ventilating hood. Lessor made a claim upon its insurance carriers, settled with them and entered into subrogation agreements by which it assigned to them its claim against lessee.

The insurers filed suit against lessee, alleging that its negligence proximately caused the loss sustained by reason of the fire. Lessee denied the allegations of negligence and filed a third-party complaint against lessor, alleging that it was the lessor’s negligent failure to provide a safe and suitable exhaust system *171that proximately caused the fire loss, and that before entering into the contract, lessor had represented the premises as safe and suitable for restaurant purposes when this was not true because, unknown to lessee, grease or other flammable material was located within the partition.

The trial court denied lessor’s (third-party defendant’s) motion for summary judgment and certified the question for immediate review.

Lessor contends that it is not subject to being impleaded under Code Ann. § 81A-114 (a) because under the terms of the lease it owed no duty to lessee and therefore could not be secondarily liable for any claim it might have, and because it is already a party to the action.

The issue raised by this latter contention is apparently novel under not only the Georgia Civil Practice Act but also Federal Rule 14 (a) from which our rule was largely adopted. It is clear that the lessor is not a "party” to the main action in the strict sense of the word. The basic law of assignments declares it to be neither a necessary nor a proper party to a suit where a legal assignment is made of the entire right of action. 2 Encyclopedia of Georgia Law 383, Assignments, §22. However, the "assignee of a non-negotiable chose in action takes it subject to the same defenses available against the assignor existing at the time of the assignment.” Id. p. 384, §23; Code §§ 85-1803, 85-1805. In this respect, the assignor is involved and interested in any suit where such a defense is raised. Under this principle, lessee’s third-party claim here is really one of its defenses to the main action — that it was not its own negligence but that of the lessor which caused the fire. If the lessee prevails with this defense, then its third-party complaint becomes moot. It will owe no damages for which anyone else might be secondarily liable. On the other hand, if judgment is obtained against the lessee, it will necessarily be an adjudication against it on the issue of whose negligence proximately caused the fire damage. An estoppel by judgment would then operate against the third-party claim on exactly the same issue.

We can see no reason to bring the lessor into this suit on a third-party claim. The only result would be confusion for the jury. *172This is directly contrary to the spirit and purpose of third-party practice which is "to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant.” 3 Moore’s Federal Practice 501, § 14.04.

Submitted September 15, 1970 Decided January 6, 1971. Stanley E. Galkin, for appellant. Nick G. Lambros, for appellees.

"In determining the propriety of allowing impleader, the court could consider the means at its disposal to prevent prejudice or confusion.” 3 Moore’s Federal Practice 506, § 14.05[1]. The lessor’s motion for summary judgment as amended raised the issue of the propriety of impleader under the unusual circumstances of this case. The trial court erred in denying the motion.

Judgment reversed.

Bell, C. J., Jordan, P. J., Eberhardt, Deen, Quillian and Whitman, JJ., concur. Panned, J., concurs specially. Evans, J., dissents.