The opinion
Bell, Presiding. Judge,
concurring in the judgment only.
While I concur in the holding in Division 1 of the majority opinion which states that “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,” I disagree with much of the reasoning by which the majority reaches that view. I differ, for instance, with the majority’s statement that the State’s “payment of compensation to persons so injured [by the tortious acts of State agents while about the governmental functions of the State] is purely a matter *724 of legislative grace based upon a strong moral obligation and equitable duty and not upon the assumption of legal liability.” Firstly, I disagree because that statement lends credence, if not positive approval, to the appropriation of public funds for a purpose which I consider to be nothing more than a donation or gratuity in favor of an individual. The payment, therefore, can have no legal significance. ■
Secondly, I disapprove the implication of the majority that the Act of the legislature is given legal worth because it is “based upon a strong moral obligation and equitable duty,” which in Division 2, the majority inconsistently recognizes as forming “a good consideration” transforming the appropriation out of the stigma of a- mere “gift or gratuity.” This statement appears to have been provoked by Code § 20-303 which, obviously, is inapplicable here because it pertains to contracts and not to torts. Further, the denotation placed on the words “strong moral obligation” by the majority has been precluded by the Supreme Court which has defined these words in Code § 20-303 as meaning, “the strong moral obligation here referred to seems to be one supported either by some antecedent legal obligation, though unenforceable at the time, or by some present equitable duty.” Davis & Co. v. Morgan, 117 Ga. 504, 507 ( 43 SE 732 ), followed in Hobbs v. Clark, 221 Ga. 558, 559 ( 146 SE2d 271 ). In this case, the appropriation by the General Assembly of the money the nature of which is in issue in this case, is a transfer of funds voluntarily made without consideration and for which there is no antecedent legal obligation or any duty, equitable or lawful.
There is no obligation whatsoever on the legislature demanding the passing of appropriations paying claims such as this. Legislative accord or legislative grace is the only rule. Legislative accord in this and like instances is not predicated on the rights of the citizenry as a whole or as a class. There are no guidelines. Payments of appropriations made in that vein can only be donations or gratuities and of no legal consequence in judicial actions between private litigants such as the case before us. They can have no place either in the pleadings of a party or in evidence.
All the more do I disagree with the views expressed by *725 Judge Eberhardt in his dissent. He would apply to plaintiff’s acceptance of the gratuity the drastic legal effect of an absolute bar to her action and would thereby relegate the State to the position of a common joint tortfeasor. The State is not a joint tortfeasor, for it cannot be sued. A joint tortfeasor can be sued. Gooch v. Georgia Marble Co., 151 Ga. 462 ( 107 SE 47 ). Further, either one, some, or all of joint tortfeasors may be sued and where one of several only is sued, recovery for the entire injury may be had without diminution because of the concurring negligence of those not sued. Terry v. Central of Ga. R. Co., 108 Ga. App. 204 ( 132 SE2d 573 ). The State cannot be sued. It has not given its express consent. “The State cannot by the courts be required to submit to being sued against its express consent.” Roberts v. Barwick, 187 Ga. 691, 694 ( 1 SE2d 713 ).
The so-called distinction “between sovereign immunity from suit and sovereign immunity from liability” to which Judge Eberhardt refers does not mean, as he implies, that the State is as liable as any tortfeasor for the torts of its agents but is merely exempted from paying judgments because the State cannot be sued. The fact is that the case he cites does not support his view but on the contrary, refutes it by holding that in addition to an immunity from suit the State also has an immunity from liability and it is therefore necessary for the latter immunity to be waived before a valid judgment for a tort can ’be entered against the State. That case holds that a mere waiver by the State to be sued is not enough. Manion v. State, 303 Mich. 1 ( 5 NW2d 527 (3-5), 528). To the like effect see Smith v. State of New York, 227 N.Y. 405, 409 ( 125 NE 841, 842 ). Under those cases, the State cannot be a joint tortfeasor as it has an immunity from liability. Under that theory a State cannot become a joint tortfeasor until it has given its express consent (1) to be sued and (2) to be subjected to liability. Where neither of those things has been waived, as in Georgia, the State cannot possibly be relegated to the status of a joint tortfeasor.
Since the State is not a joint tortfeasor, the release by the plaintiff here to the State cannot be a release of a joint tortfeasor releasing all other joint tortfeasors. That release is not a contract, but is mere nudum pactum. The acceptance by the *726 plaintiff of the legislative grant amounts to nothing more than the acceptance of a gift or a gratuity. As that, it has no legal significance and cannot be pleaded, introduced in evidence, or pleaded as a bar to the recipient’s action.
I also think Judge Eberhardt’s dissent evades the issue. The issue we are asked to decide is whether the payment to plaintiff is or is not a gratuity. That is a matter of law falling within the jurisdiction of this court. We- are asked to rule upon that point which is the end result of a statute as a matter of law. That we have the jurisdiction to do and the consequent duty to fulfill. We are not asked to construe the constitutionality of the legislative Act and to declare it unconstitutional. There is quite a difference in ruling upon the legal significance of the end result of a legislative enactment and construing its constitutionality. We have the jurisdiction and the duty to perform the former which is all that the issue in this case presents. This case is a civil case between private litigants. The issue is as to which one of the private litigants shall receive the' benefit of the legislative bounty. The nature of that bounty determines the issue. I think we should call it what it is. To say that we cannot declare this payment to this plaintiff to be a gratuity as that would amount to a holding that the statute authorizing it is unconstitutional since the Constitution prohibits legislative gratuities, is refining legal technicality to its excess.
The views of the majority pose numerous difficulties. Example: What effect does the resolution’s declaration of the value of the deceased’s life have? Is that declaration conclusive on the jury? Is that declaration even • admissible in evidence? Does it have probative value? Is the General Assembly as the legislative branch of government authorized to sit, in effect, as a jury and determine these matters, in whole or in part, and by its action preclude to any degree the judicial process? Is the jury bound, or authorized, to mitigate damages by the amount appropriated and paid? May the jury refuse to mitigate the damages by the amount paid?
The views of the dissent also forecast difficulties. Example: Would the grantee of the appropriation have been permitted to delay acceptance of the payment until after litigating her case *727 to finality? After that could she have been denied payment of the legislative grant?
Since the judgment of the majority is that the trial judge did not err in overruling the defendant’s plea in bar which is in harmony with the views expressed here, I concur in that judgment.