Fludd v. Tiller

184 Ga. App. 93 (1987)

360 S.E.2d 647

FLUDD v. TILLER et al.

74920.

Court of Appeals of Georgia.

Decided September 8, 1987.

John P. Batson, Sam B. Nicholson, for appellant.

Robert C. Daniel, Jr., for appellees.

DEEN, Presiding Judge.

The appellant, Willie Fludd, commenced this action against Frank Tiller and J. B. Dykes (as police officers), on November 30, 1984, seeking damages for a chest wound he sustained when Tiller apprehended a criminal suspect. On February 17, 1983, Fludd had commenced an action in the United States District Court for the Southern District of Georgia, against the same defendants and based on the same incident. The trial court granted the appellees' motion to dismiss, because of the pending federal action involving the same subject matter, parties, and cause of action, and this appeal followed. Held:

Comparison of the two complaints shows the same set of operative facts, the same parties, the same amount of damages sought, and essentially the same cause of action in the federal action and this state action. However, the pendency of a prior federal action generally is not a bar to a state action by the same plaintiff against the same defendant for the same cause of action. Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 (96 SE 424) (1918); Barkley-Cupit Enter-prises v. Equitable Life &c. of the U. S., 157 Ga. App. 138 (276 SE2d *94 650) (1981). Under these circumstances, the trial court certainly had the discretion to stay the state proceeding until the disposition of the pending federal action, Bloomfield v. Liggett & Myers, 230 Ga. 484 (198 SE2d 144) (1973), but outright dismissal at this juncture was inappropriate.

Judgment reversed. Birdsong, C. J., and Pope, J., concur.