Where the plaintiff recommences a suit under Code Ann. 3-808, the defendant, who previously merely interposed defenses to the original suit, may not for the first time seek to affirmatively recover damages by counterclaim, third-party complaint or cross claim when the period provided by the statute of limitation for the recovery of such damages has expired.
The defendant may, however, seek contribution by way of a third-party complaint, such cause not being barred by the statute of limitation.
This case arose out of a motor vehicle collision that occurred on December 14, 1972. Two vehicles, one operated by Vicki Ann Wells and the other operated by Sandra G. Dantzler, were stopped when a vehicle operated by Thomas Bryant Champion collided with the Dantzler vehicle, throwing it into the one operated by Wells.
On September 24, 1973, Wells filed a suit against Champion in the Fulton Superior Court (civil action B-87454) to recover damages for personal injuries and lost income as a result of the collision. On October 16, 1973, Champion filed an answer. On December 19, 1973, defendant Thomas Bryant Champion amended his answer to plaintiff Wells' complaint. The answer as amended set forth several defenses but sought no affirmative relief.
This action came on for trial, and immediately prior to the jury returning its verdict, the plaintiff voluntarily dismissed her complaint on March 19, 1975.
On March 26, 1975, Wells recommenced her suit in the Fulton Superior Court naming Champion as defendant (civil action C-6010).
On April 24, 1975, Champion answered the complaint and filed a counterclaim wherein he sought to recover damages for personal injuries as well as expenses incurred for medical treatment, drugs, lost earnings, diminution in value of his automobile and the loss of hire of the vehicle.
On that same date, the defendant filed a third-party complaint and cross claim against Dantzler. He alleged that a jury might find him in some measure liable to the plaintiff; that a jury might find the third-party defendant liable to defendant and third-party plaintiff for all or part of plaintiff's claim against defendant and third-party plaintiff and in that event defendant would have a right over against third-party defendant for contribution; further the defendant and third-party plaintiff filed a cross claim to recover from Dantzler, third-party defendant, damages for personal injury, as well as expenses incurred for medical treatment, drugs, lost earnings, diminution in value of his automobile and the loss of hire of the vehicle.
On September 28, 1973, Dantzler filed a separate suit in Fulton Superior Court naming Champion as defendant (civil action B-87497) wherein she sought to recover damages for personal injuries sustained as a result of the aforementioned collision. On October 16, 1973, defendant Champion filed his answer to plaintiff Dantzler's complaint and subsequently filed an amendment to said answer.
On May 5, 1975, plaintiff Wells filed her motion to dismiss Champion's counterclaim in civil action C-6010.
The motions in civil action C-6010 came on for hearing on November 26, 1975, and orders were entered dismissing defendant Champion's counterclaim as to personal injuries and granting third-party defendant Dantzler's motion for summary judgment and the third-party complaint and cross claim were thereby dismissed. Appeal was taken from those orders.
The defendant argues to this court that since the plaintiff is allowed to recommence his suit under the provisions of Code Ann. 3-808 (Ga. L. 1967, pp. 226, 244) without being barred by the statute of limitation that he as defendant should be allowed to seek to recover damages by counterclaim, third-party complaint, and by cross claim.
It is true that old cases dealing with Code Ann. 3-808 point out that where the plaintiff recommences his suit, then the defendant is entitled to assert new defenses. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141, 142 (189 SE 555). See also Morrow v. Hanson, 9 Ga. 398, 399 (54 AD 346). However, this has nothing to do with a defendant's right to assert an affirmative claim.
It is clear that while the defendant could have filed a counterclaim and third-party complaint seeking enforcement of his rights in the prior suits even though the statute might otherwise have run, he did not choose to do so. He is thus barred since the statute of limitation as to personal injuries expired in December 1974 prior to the time the main action was filed, to wit: March 1975. Code Ann. 3-1004 (Ga. L. 1964, p. 763) and Code Ann. 3-810.
This court considered a similar principle in Gunnells v. Seaboard A. L. R. Co., 130 Ga. App. 677
, 679 (204 SE2d 324
), and held: "Since the last day for filing the answer and other defensive pleadings expired thirty days after February 22, 1968, and Mrs. Martin filed no pleadings until on and after December 10, 1970, Code Ann. 3-810, providing for the extension of the limitation period with respect to counterclaims and cross claims until the last day upon which the answer or other defensive pleadings should have been filed, does not operate to extend the period of limitation prescribed by Code Ann. 3-1004, which is otherwise applicable to cross claims."
The trial judge correctly found that the defendant was barred from recovery predicated on personal injuries, but that he still might proceed based on damages for injury to property. Code Ann. 3-1002 (Ga. L. 1955-6, p. 233).
Nevertheless, in McMichael v. Ga. Power Co., 133 Ga. App. 593 (211 SE2d 632)
, this court held that a third-party complaint is maintainable under CPA 14 (a) (Code Ann. 81A-114 (a); Ga. L. 1966, pp. 609, 627; 1969, p. 975) for contribution. Under the circumstances here, the statute of limitation would not bar recovery based on contribution. Code Ann. 3-704 (Ga. L. 1943, p. 333). Compare Southern R. Co. v. A. O. Smith Corp., 134 Ga. App. 219
, 221 (213 SE2d 903
). Hence, it was error to dismiss the third-party complaint insofar as it sought contribution only.