Bennett v. Dove , 93 Ga. App. 57 ( 1955 )

93 Ga. App. 57 (1955) 90 S.E.2d 601

BENNETT
v.
DOVE.

35942.

Court of Appeals of Georgia.

Decided November 21, 1955.

Guy B. Scott, Jr., for plaintiff in error.

Erwin, Nix, Birchmore & Epting, Eugene A. Epting, contra.

CARLISLE, J.

1. A single wrongful or negligent act which injures both one's person and his property gives but a single cause of action (Georgia Ry. &c. Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 62 A. L. R. 256; Western & Atlantic R. Co. v. Atkins, 141 Ga. 743, 82 S.E. 139), in the absence of a waiver by the defendant as to the bringing of separate suits by the plaintiff for the injuries to his person and to his property. Georgia Ry. &c. Co. v. Endsley, supra.

2. A settlement of the property damage will bar an action for damages on account of injuries to the person, where the property and personal damages are the result of a single wrongful or negligent act. Western & Atlantic R. Co. v. Atkins, supra; Giles v. Smith, 80 Ga. App. 540 (56 S.E.2d 860).

3. "The construction of contracts is a prerogative of the courts which is delegated to the jury only when there are ambiguous expressions in the contract and resort must be had to aliunde testimony in order to clarify the meaning of the language used, as it was understood by the parties, and thus make plain their real intention." Ludden & Bates Southern Music House v. Dairy & Farm Supply Co., 17 Ga. App. 581 (87 S.E. 823).

4. Under an application of the foregoing principles of law to the facts of the present case, the trial court did not err in sustaining the motion to dismiss, in the nature of a general demurrer, or in dismissing the plaintiff's petition. There is no allegation of fraud, misrepresentation, misplaced confidence, undue influence, or other act which might cause the contract to be set aside. The contract was for a valuable consideration and released the defendant "from any and all actions, causes of action, damages or demands of whatever name or nature in any manner arisen, arising or to grow out of any and all accidents or matters especially an accident to my 1952 Plymouth coupe claimed by . . . [the plaintiff] to have been sustained on or about 13 days of Jan., 1955 . . . [and] the above consideration is in full settlement of any and all damages to the . . . [plaintiff] arising from or out of any and all matters aforementioned." The contract is unambiguous. If the plaintiff and the defendant had intended that the contract should only compensate and relieve from liability for damage to the automobile, then they should have so stated in writing, otherwise the broad general terms of the contract are all-inclusive, and since a single wrongful act which injures one's person and one's property gives but a single cause of action, the release constitutes a complete defense to the plaintiff's cause of action. See James v. Tarpley, 209 Ga. 421, 423 (73 S.E.2d 188).

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.

On June 14, 1955, J.C. Bennett brought an action for $5,560 in damages against Claude Dove to recover for enumerated personal injuries growing out of a collision between the plaintiff's and the defendant's automobiles on January 13, 1955.

The defendant filed a plea of accord and satisfaction in which he alleged that all claims of the plaintiff growing out of the collision between the two automobiles had been fully settled and compromised as shown by the following release:

"Know all men by these presents, that I, J. C. Bennett, in consideration of eighty-three and 36/100 dollars ($83.36) to me in hand paid by Claude Dove receipt whereof is hereby acknowledged, have for myself, my heirs, executors, administrators, successors and assigns, released, acquitted and discharged and by these presents do release, acquit and forever discharge said Claude Dove, his . . . heirs, executor, administrators, successors, or assigns, of and from any and all actions, causes of action, damages or demands of whatever name or nature in any manner arisen, arising or to grow out of any and all accidents or matters and especially an accident to my 1952 Plymouth coupe claimed by the undersigned to have been sustained on or about the 13 day of Jan., 1955, substantially as follows: car in front of me turned off without giving signal, when I slowed down Mr. Dove ran into rear of my car.

"It is further acknowledged that there is no agreement or promise on the part of Claude Dove his . . . heirs, executors, administrators, successors and assigns to do or omit to do any act or thing not herein mentioned, and that the above consideration is in full settlement of any and all damages to the undersigned arising from or out of any and all matters aforementioned. The said Claude Dove in paying the said sum of money does so in compromise of the said claim or claims, action or actions, cause of action, or causes of action, damages and demand or demands above released, not admitting any liability on account of the same. In witness whereof, I have hereunto set my hand and seal on this 14 day of January A. D., 1955. /s/ J. C. Bennett (L.S.)."

The defendant alleged further that on January 14, 1955, the plaintiff received a draft, issued on General Accident Fire & Life Assurance Corporation, in the amount of $83.36, which was paid to the plaintiff in satisfaction of his claim for damages growing out of the collision referred to in the plaintiff's petition, and such check or draft was received and endorsed by the plaintiff, and cashed by him. The following statement appeared on the draft immediately above the plaintiff's signature: "The endorsement of this draft constitutes a clear release and receipt in full settlement of the claim or account indicated on the face of this draft." The defendant contends therefore that there has been a complete accord and satisfaction and settlement of the plaintiff's claims in connection with all matters set out in the plaintiff's petition.

In answer to the defendant's plea, the plaintiff admitted that he executed the release referred to as a release for property damage to his automobile only. He admitted that he received the check from the General Accident Fire & Life Assurance Corporation in the amount of $83.36 in settlement of his claim for damages to his automobile, and admitted further that he had cashed the check. He denied that he had settled in any way his claim for bodily injury and denied that there had been a complete accord and satisfaction and settlement of his claims in connection with all matters set out in his petition.

The defendant's motion to dismiss in the nature of a general demurrer was sustained, and the plaintiff's petition was dismissed, and the plaintiff assigns error upon that judgment.