McMullan v. Nichols , 162 Ga. App. 865 ( 1982 )

162 Ga. App. 865 (1982) 292 S.E.2d 568

McMULLAN et al.
v.
NICHOLS.

63805.

Court of Appeals of Georgia.

Decided June 22, 1982. Rehearing Denied July 8, 1982.

E. Davison Burch, for appellants.

J. Vincent Cook, for appellee.

SOGNIER, Judge.

Charles W. Nichols sued Billy and Rhonda McMullan seeking recovery for personal injuries arising out of an automobile accident. The McMullans pleaded accord and satisfaction on the basis of a release executed by Nichols and a draft endorsed by appellee. The release stated that it included "all claims. . .on account of all personal injury . . . property damage . . . already sustained or that I may hereafter sustain . . ." The draft recited "In payment of any and all claims arising from accident of 2/17/81." The McMullans moved for summary judgment attaching the release and draft. Nichols countered with an affidavit stating that he had not read the release because he did not have his glasses with him and that he had relied upon the adjuster who told him the release and the amount covered only his property damage. The trial court denied appellants' motion for summary judgment. Upon proper application by appellants, we granted this interlocutory appeal.

"This case is controlled by Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58 (239 SE2d 381) (1977) and Riker v. McKneely, 153 Ga. App. 773 (266 SE2d 553) (1980). The record does not disclose any artifice, fraud or trick which prevented appellant from reading the release. No fiduciary relationship existed between the claims adjustor and appellant." Wyatt v. Jones, 159 Ga. App. 93, 94 (283 SE2d 48) (1981). The release is valid and summary judgment should have been granted in favor of appellants.

Judgment reversed. Deen, P. J., and Pope, J., concur.