Opinion
41923.
ARGUED APRIL 6, 1966.
DECIDED JUNE 2, 1966.
Action for damages. Taylor Superior Court. Before Judge Davis.
Miller, Miller Miller, Wallace Miller, Jr., for appellant.
Garland T. Byrd, Dan S. Beeland, for appellee.
The court erred in overruling the Georgia Power Company's motion for a judgment n.o.v. as to its plea of accord and satisfaction, it having become the law of the case that it was not subject to demurrer, and the evidence having sustained the plea.
The court erred in overruling the Georgia Power Company's motion for a new trial as to its cross action for damages against the plaintiff for damages to its automobile.
ARGUED APRIL 6, 1966 — DECIDED JUNE 2, 1966.
J. C. McElmurray brought an action against Georgia Power Company for alleged damages to his logging truck as a result of a collision with defendant's passenger automobile being driven by B. J. Summer, and a cross action was instituted by defendant for damages to its automobile. Plaintiff's petition as amended alleges as follows: "1. That the defendant, the Georgia Power Company, is a corporation organized under the laws of the State of Georgia with its principal place of business at 270 Peachtree Street, Atlanta, Fulton County, Georgia. 2. That the defendant is an electric company authorized and licensed to carry on its business in the State of Georgia and has an office, a place of business and an authorized agent in Reynolds, Taylor County, Georgia. 3. That the defendant, the Georgia Power Company, was on August 14, 1961, engaged in its business in Georgia and on said date maintained said office and agent in Taylor County, Georgia. 4. That said J. C. McElmurray is a resident of Taylor County, Georgia and was on August 14, 1961, the owner of a 1957 Ford 2-Ton F-600 truck and trailer. The plaintiff further shows that his said truck was being operated by one Charles Dugger, an employee of petitioner, on August 14, 1961, when it collided with a vehicle operated by Mr. B. J. Sumner, said vehicle being a 1961 Ford Sedan automobile owned by Georgia Power Company and assigned to B. J. Sumner by said company in his capacity as an employee of the company. At the time and place said employee was acting within the scope of his employment with plaintiff. 5. On Monday, August 14, 1961, at approximately 8:10 a. m. plaintiff's truck was traveling in a southerly direction on Georgia Highway No. 128 approximately three miles north of Reynolds, Georgia. 6. Plaintiff's truck at said time was traveling at approximately 10 miles per hour in the right-hand lane of Georgia Highway No. 128 in a southerly direction. 7. Defendant's vehicle was traveling in a northerly direction on August 14, 1961 at approximately 8:10 a. m. and collided with plaintiff's vehicle on the west side of the center line of said Georgia Highway No. 128. 8. The dual rear wheels on the left side of plaintiff's vehicle was struck by the left front portion of defendant's vehicle. 9. Said highway was and is a public highway in the State of Georgia paved with asphalt paving with the paving being 20 feet wide; with said highway being a 2-way highway with the easterly half for vehicles moving north and with the westerly half for vehicles moving south. 10. As a result of said collision the plaintiff was damaged in the amount of $1,900, the value of said plaintiff's truck being $2,000 prior to said accident and being a value of $100 after said collision. 11. The acts of said defendant's agent herein set forth were in law the acts of defendant, the Georgia Power Company, and said defendant is responsible, therefore, and accountable, therefore to plaintiff. 12. The negligence of the defendant through its agent was the sole proximate cause of plaintiff's damages and the defendant was negligent in the following respects, to wit: . . ." Plaintiff then set out 4 specifications of negligence by defendant. Defendant Georgia Power Company's answer and cross action, as amended, is as follows: "1. Defendant admits Paragraphs 1, 2, 3, 4, 5 and 9 of plaintiff's petition. 2. Defendant denies Paragraphs 6, 7, 11, 12 of plaintiff's petition. 3. Defendant denies as pleaded Paragraph 8 of plaintiff's petition. 4. For want to information, defendant can neither admit nor deny Paragraph 10 of plaintiff's petition, but demands strict proof thereof. 5. Further answering said petition, defendant shows that at the time and place complained of in plaintiff's petition the said Charles Dugger was operating plaintiff's vehicle in the capacity of an agent and employee of plaintiff, and within the scope of his employment with plaintiff, and that any loss or damage suffered by plaintiff was due to the negligence and fault of the said Dugger. 6. Further answering plaintiff's petition and as a defense in complete bar thereof, defendant shows that there has been a complete accord and satisfaction as follows: (a) Plaintiff's petition shows on its face that plaintiff's right of recovery, if any, and defendant's liability to plaintiff in the cause sued upon, if any, is predicated and based solely on the alleged acts, omissions and negligence of defendant's agent, B. J. Sumner, and that the liability of defendant to plaintiff, if any, is based on the doctrine of respondeat superior. (b) Heretofore defendant's agent, B. J. Sumner, filed a suit against the plaintiff in the above-styled matter for personal injuries and expenses suffered and lost by the said B. J. Sumner growing out of the accident and collision and cause which is the subject matter of plaintiff's action in this case against defendant Georgia Power Company. The suit of B. J. Sumner against plaintiff herein was filed in this court and was case No. 2348. (c) Said suit of B. J. Sumner against plaintiff herein charged plaintiff herein, by and through said plaintiff's agent and servant, with negligence, and that such negligence was the proximate cause of the collision and cause involved in this case against defendant Georgia Power Company. (d) Said suit of B. J. Sumner against plaintiff herein was served upon plaintiff herein, and by acts put into motion by plaintiff herein, said suit came into the hands of plaintiff's liability insurer, who insured plaintiff against loss in the collision involved, and in turn said suit reached the law firm of Martin, Snow, Grant Napier of Macon, Georgia, who filed defensive pleadings to B. J. Sumner's said suit against plaintiff herein, and said attorneys were acting for and on behalf of plaintiff herein and his liability insurance carrier, Wolverine Insurance Company of the Tower Insurance Group; copy of policy attached as `Ex. C.' (e) Hendley V. Napier, Attorney of the firm of Martin, Snow, Grant Napier, on behalf of said insurance company and plaintiff herein, compromised and settled the claim of B. J. Sumner and that of his wife, Mrs. Beth M. Sumner, who was a passenger in the automobile operated by B. J. Sumner, and also the claim of B. J. Sumner and Mrs. Beth M. Sumner for injuries to their minor child, Bryceon Sumner, who was also a passenger in the automobile operated by B. J. Sumner in the collision herein involved. (f) The claims of B. J. Sumner and Mrs. Beth M. Sumner were settled for $6,454.19, according to and by virtue of a `Release in Full,' copy of which is marked `Exhibit A' and attached hereto. (g) The release of B. J. Sumner and Mrs. Beth M. Sumner for injuries to said child was in the consideration of $100, pursuant to and by virtue of an `Indemnifying Release,' which is attached hereto, marked `Exhibit B.' (h) The total sum of said settlements, $6,554.19, was paid to Mr. and Mrs. B. J. Sumner and their attorney at law, Wallace Miller, Jr. (i) Defendant Georgia Power Company shows that the settlement of its agent's claim, B. J. Sumner's claim, against plaintiff herein, J. C. McElmurray, as heretofore set forth, was, in law, a settlement and extinguishment of any claim J. C. McElmurray had against this defendant, Georgia Power Company, growing out of said collision; both the claims, Sumner against McElmurray, and plaintiff McElmurray against Georgia Power Company, growing out of the identical collision and state of facts. (j) Even if the release, Exhibit A, heretofore mentioned, would permit plaintiff J. C. McElmurray to assert a claim against the said B. J. Sumner, which this defendant denies, the same could not be binding on defendant herein, who was not a party to said release and who has not acquiesced therein; moreover, the release, Exhibit B, does not purport to authorize even a claim by plaintiff J. C. McElmurray against B. J. Sumner; and because of this release, regardless of the status of release, Exhibit A, any claim of plaintiff McElmurray has thereby, as a matter of law, been settled and extinguished. (k) That portion of Exhibit A which attempts to set forth that the release therein, J. C. McElmurray, may assert a claim against releasor, B. J. Sumner, is null and void because the same is predicated upon an Act of the Georgia Legislature (Ga. Laws 1963, p. 643 et seq.)." Defendant's answer attacks the constitutionality of Ga. L. 1963, p. 643 for various reasons and also alleges the following: "Defendant further shows that said Act of the Georgia legislature (Ga. Laws 1963, p. 643, et seq.) is not applicable to this defense of accord and satisfaction because said Act of the legislature, codified as Sect. 56-408.1 of the 1933 Code of Georgia Annotated, was approved April 17, 1963, and applies only to insurance policies executed after the effective date of said law and the insurance policy herein involved was for the period July 15, 1961 through July 15, 1962, and the rights of the parties became fixed under said insurance policy prior to the effective date of said Act."
The demurrer by the plaintiff to the Georgia Power Company's plea of accord and satisfaction set forth by an amendment to the answer was overruled by the court and no cross appeal was taken thereto. In addition, the motion by the plaintiff to strike the defendant's plea of accord and satisfaction on the ground that it was filed too late was overruled by the court and no cross appeal was taken from such judgment. It was stipulated by and between the parties that as a result of the collision involved in this case the fair market value of plaintiff's vehicle immediately after the accident was $1,900 less than its fair market value immediately prior to the accident, and that the fair market value of the Georgia Power Company's vehicle immediately after the accident was $1,388 less than its fair market value immediately prior to the accident. The jury returned a verdict in favor of the plaintiff against the Georgia Power Company in the sum of $1,900, against the cross action of the Georgia Power Company and against the plea of accord and satisfaction, and the court rendered judgment accordingly. The appeal is from the judgment of the court upon said verdict and from the finding by the trial court against the plea of accord and satisfaction, from the order overruling the Georgia Power Company's amended motion for a new trial and from the overruling of the Georgia Power Company's motion for a judgment notwithstanding the verdict upon the issue raised by the plea of accord and satisfaction filed by the Georgia Power Company.
1. The court erred in overruling the plea of accord and satisfaction filed by the Georgia Power Company. The allegations in the plea set forth an accord and satisfaction and the overruling of the demurrers to the plea, and of the objection that it was filed too late made it the law of the case that the plea was filed in time and set forth an accord and satisfaction. Since the allegations of the plea of accord and satisfaction were proved without dispute it follows that the court erred in not granting a judgment n.o.v. as to the plea of accord and satisfaction. As to the real merits of the court's judgment overruling the demurrers to the plea of accord and satisfaction, see Aetna Casualty c. Co. v. Brooks, 218 Ga. 593 ( 129 S.E.2d 798). The Act of 1963, p. 643 et seq. ( Code Ann.) § 56-408.1) is not applicable to this case because it was enacted after the insurance policy in this case was written. Ericson v. Hill, 109 Ga. App. 759 ( 137 S.E.2d 374).
2. The claim of the Georgia Power Company for damages to its automobile was not settled by the settlement of the other claims of the other parties for the reason that the Georgia Power Company was not a party to the other action and was not in a position to claim or collect damages to its automobile. Tompkins Motor Lines, Inc. v. Georgia Broilers, Inc., 260 F.2d 830 (4).
3. The court erred, as to a part of the charge on the amount the plaintiff could recover on its action and how much the Georgia Power Company could recover on its cross action, in telling the jury that if it found for the plaintiff its verdict should be for $1,900. The parties made no such stipulation but only stipulated the values of the parties' vehicles before and after the collision. The charge eliminated the consideration of the effect the comparative negligence rule might have on the amount of plaintiff's recovery. This is not to imply that the charge is not subject to additional objections.
4. The court erred in not charging the jury without request that if the plaintiff was guilty of negligence per se, proximately causing defendant's damages, the defendant would be entitled to recover for the reason that he gave such a charge for the plaintiff but did not so charge in behalf of defendant, since the defendant also alleged acts of per se negligence. Brown v. Everett, Ridley Ragan Co., 111 Ga. 404, 405 ( 36 S.E. 813); Whelchel v. Gainesville c. R. Co., 116 Ga. 431 (3) ( 42 S.E. 776); Hill v. Hill, 55 Ga. App. 500, 502 ( 190 S.E. 411).
5. Enumerated error number 7 will not be passed on since the alleged error complained of will not likely recur on another trial of the question whether the Georgia Power Company is entitled to recover on its cross action.
6. The court erred in charging that the legal speed limit at the time and place was 35 miles per hour when the undisputed evidence showed it to be 60 miles per hour. This was harmful to the defendant because its servant was admittedly driving its automobile 50 to 55 miles per hour.
7. The alleged errors in the charge, covered in enumerated errors numbers 9 and 10, will not be considered because the alleged errors will not likely recur on another trial of the remaining issue in this case.
The court erred in overruling the Georgia Power Company's motion for a judgment n.o.v. as to the plea of accord and satisfaction and erred in overruling its motion for a new trial. Direction is given that the court enter up a judgment n.o.v. in accordance with the motion therefor.
Judgments reversed. Frankum and Pannell, JJ., concur.