Weems v. Freeman, 29759
| Decision Date | 13 May 1975 |
| Docket Number | No. 29759,29759 |
| Citation | 234 Ga. 575,216 S.E.2d 774 |
| Parties | L. Jack WEEMS et al. v. David A. FREEMAN et al. |
| Court | Georgia Supreme Court |
Gambrell, Russell, Killorin, Wade & Forbes, David A. Handley, Jack O. Morse, Robert B. Wedge, Atlanta, for appellants.
Palmer H. Ansley, David Crockett, Richard W. Wilson, Jr., Atlanta, Tyler C. Dixon, Tucker, for appellees.
Syllabus Opinion by the Court
Plaintiff-landowner sued an adjacent owner of industrial property, a contractor, and certain engineers for injunctive relief and damages which plaintiff claimed to have sustained when the adjacent property was developed, 'increasing the surface water runoff and siltation into the Conley Creek area above plaintiff's property (and causing) said creek to overflow its banks onto plaintiff's property, thus creating a trespass and nuisance.' During the trial, the landowner and contractor defendants reached an oral agreement with the plaintiff, which they termed a covenant not to sue, whereby they each paid plaintiff $15,000. They agreed that the suit would continue against all the named defendants as though no settlement had taken place, and that if a verdict were rendered against all defendants the engineers, the only remaining actual defendants, were to pay only one-third of the damages. The engineers made numerous objections and motions regarding the settlement and further proceedings. All were overruled and the jury rendered a verdict of $50,000 damages and $10,000 attorney's fees in favor of the plaintiff against all defendants. The engineers bring this appeal.
The basic enumeration of error is that the trial court erred in failing to grant appellants' motion for directed verdict on the ground that the settlement agreement released all defendants from liability. We agree and reverse the judgment of the trial court.
Georgia follows the common law rule that a release of one joint tortfeasor has the effect of discharging all other tortfeasors. Grizzard v. Davis, 131 Ga.App. 577, 581, 206 S.E.2d 853; City of Buford v. Hosch,104 Ga.App. 615, 122 S.E.2d 287. However, a mere covenant not to sue one joint tortfeasor, or an instrument that may be construed as such, does not discharge the remaining tortfeasors. Moore v. Smith, 78 Ga.App. 49, 50 S.E.2d 219. Where the right to sue has been reserved and the plaintiff has not received full satisfaction, the agreement will be construed to be a covenant not to sue because of the manifest intent of the parties. Atlanta Coast Line R. Co. v. Ouzts, 82 Ga.App. 36, 60 S.E.2d 770. While a covenant not to sue can be made lis pendens and the suit dismissed as to the tortfeasors making the settlement, Register v. Andris, 83 Ga.App. 632, 64 S.E.2d 196, it is a non sequitur to claim that there is a covenant not to sue and yet at the same...
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...did not receive full satisfaction; court construes the agreement as a covenant not to enforce the judgment); Weems v. Freeman, 234 Ga. 575, 216 S.E.2d 774, 775 (1975) ("where the right to sue [other joint tortfeasors] has been reserved and the plaintiff has not received full satisfaction, t......
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