Trice v. Wilson , 113 Ga. App. 715 ( 1966 )

Jordan, Judge.

This is a case of first impression in this State and we have found but two cases from other jurisdictions in point. In Pickwick v. McCauliff, 193 Mass. 70 (78 NE 730), the Supreme Judicial Court of Massachusetts in a 1906 decision held that the principle of law that the release of one joint tortfeasor operates as a bar to recovery against other joint tortfeasors has no application in a case such as this since the Commonwealth or State was not legally answerable in tort to the plaintiff under the doctrine of sovereign immunity. The court in that case stated that, “What was received by the plaintiff from the commonwealth must be regarded therefore as in the nature of a gift or gratuity and not as something paid in satisfaction of an injury for which it was or might be liable according to established rules of law or of a claim made upon it by the plaintiff.”

The Supreme Court of Tennessee in a 1961 decision (Schoenly v. Nashville Speedways, Inc., 208 Tenn. 107 (344 SW2d 349)), held on the other hand that an award of damages by the State Board of Claims to a party injured by the joint and concurrent negligence of a State employee and other defendants had the effect of a judgment of a court of law and that the payment of such award or judgment constituted a satisfaction of the plaintiff’s claim and precluded the plaintiff from proceeding against the joint tortfeasors. The court in its opinion stated as follows: “It seems clear that since the State’s employee Graham was a joint tort-feasor with defendants and that the State, but for its immunity from suit as a sovereign, would have also been jointly and severally liable with the others upon the doctrine of respondeat superior; and that since the Board of Claims allowed plaintiff compensation for his injuries, which was paid, that this was a satisfaction of his claim and a discharge of the other joint tort-feasors, as held by the learned Trial Judge.”

It is contended here by the defendant appellant that since Resolution Act No. 241 of the General Assembly recited that the payment to the plaintiff provided for therein “shall be in full and final satisfaction for any claim against the State arising as a result of the collision described and set forth in this Resolution,” the plaintiff’s acceptance of same constituted a release of the State and that by operation of law the defendant was also released from any liability arising out of the same collision under the principle of law that the release of one of several joint tortfeasors extinguishes the plaintiff’s cause of action and relieves all jointly liable thereon. The plaintiff appellee contends on the other hand in accord with the decision of the Massachusetts court that since the State was not legally liable to the plaintiff because of the doctrine of sovereign immunity, its payment of compensation to her was purely voluntary and constituted a gift or gratuity which would not enure to the benefit of the defendant in any way.

The plaintiff is correct in her contention that the State was not legally answerable in tort for the negligence of its employee. The State of Georgia has never renounced its sovereign immunity from liability for the negligent or other tortious acts or conduct of its officers, agents or employees, and has not consented to be sued therefor. Roberts v. Barwick, 187 Ga. 691 (1 SE2d 713); National Dist. Co. v. Oxford, 103 Ga. App. 72 (118 SE2d 274). The injured party must look to the legislature and not the courts (Georgia Military Institute v. Simpson, 31 Ga. 273, 277), the payment of compensation to persons so injured being purely a matter of legislative grace based upon a strong moral obligation and equitable duty and not upon the assumption of legal liability. 172 ALR 1407.

The State in recognition of its responsibilities in this regard has created a Claims Advisory Board (Ga. L. 1963, p. 624; Code Ann. §§ 47-504—47-510), the function of which is to receive notice of claims against the State, investigate them, hold hearings if necessary, and prepare statements of its findings, its determination of the merits of such claims and its recommendation as to the payment of the same for transmittal to the legislature of this State. The law specifically provides, however, that the recommendations of this board shall be advisory only and are not binding in any way on the legislature in whose absolute discretion and good faith the ultimate determination of a claim rests.

The Claims Advisory Board is not, therefore, comparable to the Tennessee Board of Claims which is under a statutory duty to make no award or settlement “unless the facts found by said board of claims establish such a case of liability on the part of a department or agency of the State government as would entitle the claimant to a judgment in an action at law, if the State were amenable to such,” (Tennessee Code Annotated § 9-812); but whose awards when made are supposed to constitute fair and adequate compensation for a claimant’s injuries, and whose determinations have the finality of a judgment of a court of law. Schoenly v. Nashville Speedways, Inc., 208 Tenn. 107, supra.

Thus, while the State of Tennessee, like Georgia, has not renounced its sovereign immunity from suit, Tennessee, unlike Georgia, has established by statutory enactment a quasi-judicial body to determine and award fair and adequate compensation to injured parties. The legislature of this State has created no statutory guidelines to insure that fair and adequate compensation is paid to injured parties; its award of compensation is, as stated above, absolutely discretionary, ex parte in its determination, and based upon the State’s moral obligation to answer for the torts of its employees and not upon any legal duty.

Under these circumstances, since the State was not jointly liable with its employee, the defendant’s intestate, for the damages sustained by the plaintiff and since the State has not established any statutory guidelines to insure that parties in the position of the plaintiff receive fair and adequate compensation for their injuries, it is our opinion that, as contended by the plaintiff, the legal principle that the release of one of several joint tortfeasors extinguishes the plaintiff’s cause of action and relieves all jointly liable thereon has no application here; and that the plaintiff’s acceptance of whatever compensation the legislature chose to award her did not ipso facto constitute the full satisfaction of the damages sustained by her as a result of the negligence of the defendant’s intestate so as to extinguish her cause of action and bar the prosecution of this suit against' the defendant. Indeed, the Resolution of the General Assembly under which the award was made, showed on its face that it was not intended as full compensation for the damages sustained by the plaintiff since it was recited therein that the present cash'value of her husband’s life was $39,227; yet only $12,500 was awarded to the plaintiff as damages for the wrongful death of her husband, the remaining compensation being awarded for items of damages which are not included in this action. The trial court did not err therefore in overruling the defendant’s plea in bar.

The legislature of this State is under a constitutional mandate to make no donation or gratuity in favor of any person, corporation or association (Art. VII, Sec. I, Par. II of the Constitution; Code Ann. § 2-5402); and it is our opinion that, contrary to the contention of the plaintiff, it cannot be said that the compensation awarded to her was merely a gift or gratuity and made in violation of the Constitution of this State. Clearly, such award was intended as payment in part to the plaintiff for damages actually sustained by her as the proximate result of the tortious misconduct of a State employee committed in the course of his employment and was founded upon the strong moral obligation of the State to answer for such damages under the doctrine of respondeat superior. Accordingly, while the award was voluntary in the sense that it was not legally compellable under existing law, it was based upon a good consideration and was not merely a gift or gratuity.

This being true, it is our opinion that the amount of compensation awarded to the plaintiff as damages for her injuries, could enure to the benefit of the defendant in this action under proper pleadings. “[I]n a tort action, compensation, and not enrichment, is the basis for the award of damages.” Atlantic C. L. R. Co. v. Ouzts, 82 Ga. App. 36 (3), 58 (60 SE2d 770). “There can be no double recovery of the amount of damage which one has sustained. . . As was said by the court in Lovejoy v. Murray, 3 Wall. 1, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover again for the same damage.” Donaldson v. Carmichael, 102 Ga. 40, 42 (29 SE 135). Under the Donaldson case, the plaintiff upon the principles of equity and good conscience is not entitled to recover twice for the same damages, and since the compensation awarded the plaintiff by the State was clearly intended to compensate her in part for the same damages which she is seeking to recover in this action, the defendant could plead the payment of same in reduction or avoidance of the plaintiff’s right of recovery but not as an absolute bar to her right of action. It would thus be a question for the jury’s determination, in the event they found for the plaintiff, as to whether or not the plaintiff was entitled to additional remuneration from the defendant in order to be fully compensated for the wrongful death of her husband. The situation presented here is in this respect comparable to that arising out of the execution of a covenant not to sue one of two joint tortfeasors which does not constitute a release of the other tortfeasor, “and does not bar a proceeding against him, but any sum received from the first may be pleaded and proved in reduction of the amount of damages to be awarded by the jury.” Atlantic C. L. R. Co. v. Ouzts, 82 Ga. App. 36 (2), supra.

Digressing from the merits of this case and speaking only for the writer, the doctrine of sovereign immunity needs to be re-examined in the light of present day realism. This theory that the “King can do no wrong” is a descendant of the common law which has outlived any usefulness that it might have had or the purposes which inspired it. It had its origin in England at a time when the sovereign could hardly do any wrong simply because the sovereign engaged in very few, if any, activities likely to incur wrong or injury to its subjects. Not so, however, in the age in which we now live, for all units of government today are big business. The State of Georgia perhaps owns and operates on the highways of this State more vehicles and equipment than the largest corporations. The activities of its employees and agents daily and constantly touch and affect the life of every citizen of the State. Under such conditions the only realistic approach to the problem, (which will continue to grow) is for the State and its subdivisions to abandon this concept of sovereign immunity in favor of a Torts Claim Act or similar legislation permitting lawsuits in favor of those damaged or injured by such activities. Under such procedure the State, if a wrongdoer, could be brought into the courts as an adversary rather than merely dispensing legislative grace to its citizens in an ex parte proceeding under the present system. If the State could be made a party litigant, principles applicable to all tortfeasors or joint tortfeasors could be applied, .and needless to say under such circumstances, this court would not have been presented with the novel question which we here pass upon. A similar suggestion was made by Chief Justice Duckworth some 27 years ago in Roberts v. Barwick, 187 Ga. 691, supra, where he pointed out that such could be brought about only by legislative action.

Judgment affirmed.

Felton, C. J., Nichols, P. J., and Frank-um, J., concur. Pannell, J., concurs specially. Bell, P. J., concurs in the judgment only. Hall, Eberhardt, and Deen, JJ., dissent.