Cash v. Street & Trail, Inc., 50946

• Decision Date: 21 October 1975
• Docket Number: No. 1,No. 50946,50946,1
• Citation: 221 S.E.2d 640,136 Ga.App. 462
• Parties: , 93 A.L.R.3d 1290 W. M. CASH v. STREET & TRAIL, INC
• Court: Georgia Court of Appeals

Page 640

221 S.E.2d 640

136 Ga.App. 462, 93 A.L.R.3d 1290

W. M. CASH v. STREET & TRAIL, INC.

No. 50946.

Court of Appeals of Georgia, Division No. 1.

Oct. 21, 1975.

Rehearing Denied Nov. 7, 1975.

Scheer & Elsner, Robert A. Elsner, Robert L. Coley, Atlanta, for appellant.

Savell, Williams, Cox & Angel, William S. Goodman, Edward L. Savell, Atlanta, for appellee.

MARSHALL, Judge.

This appeal is from the grant of a summary judgment in favor of the appellee, defendant below. The facts giving rise to this controversy reflect that the appellee, Street and Trail, Inc., was a corporate business selling motorcycles and similar vehicles to the public. On August 14, 1972, appellant Cash, plaintiff below, went to appellee's premises for the purpose of obtaining a demonstration ride on a cross country, medium powered motorcycle. A salesman and agent for appellee informed appellant there were no cross country motorcycles of the kind sought by appellant available for examination and demonstration. Further inquiry by appellant disclosed that appellee had available a more powerful racing motorcycle. Appellant indicated an interest in examining that vehicle and taking a demonstration ride thereon. Appellee's salesman made careful inquiry of appellant if appellant was familiar with the more powerful motorcycle and if he had ever ridden one. Upon assuring the salesman of his familiarity with the particular model involved and his desire to ride one, the salesman caused a motorcycle of the more powerful type to be prepared for a demonstration ride. Prior to allowing appellant to ride the motorcycle, appellee presented to and caused appellant to sign a 'waiver of liability.' That document as signed by appellant provided in pertinent part that appellant '. . . for the sole consideration of Street and Trail, Inc., allowing me to examine and ride for the demonstration, as a prospective purchaser, their motorcycle . . . do hereby release, and forever discharge Street and Trail, Inc., . . . of any and from all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting from my riding and examining said motorcycle . . . belonging to Street and Trail, Inc.'

Appellant asserted that he was told the 'waiver' would make him liable for any damage he might cause to the motorcycle and that he could not ride the vehicle until he signed the document. After signing the 'waiver,' appellant drove the motorcycle on the grounds of appellee's business premises for about ten minutes. At a time when no other person was observing his operation of the motorcycle, appellant became involved in an accident, striking trees and/or a telephone pole on the edge of the area in which he was riding. Appellant, though in pain, was not allowed to leave until he had paid approximately $18.00 for damages to the motorcycle. Thereafter appellant was admitted to a hospital and received significant medical attention and care for internal injuries resulting from the incident.

Appellant brought suit alleging that the motorcycle furnished him was defective causing the front wheel to 'lock' throwing him bodily over the handlebars and causing the resulting personal injuries. Appellee defended on the ground that appellant had released appellee for any and all injuries and was barred from bringing suit. The trial court granted appellee's motion for summary judgment. This appeal followed in due course with but a single enumeration of error, the granting of the motion for summary judgment and dismissal of appellant's complaint. Held:

This case presents for identification, clarification and appropriate application, the legal terms 'release,' 'covenant not to sue,' and 'indemnity agreement.' This resolution is required because the parties to this litigation tend to use interchangeably the three terms. It seems clear, however, that the terms are not interchangeable and each pertains to different legal principles.

In its purest sense, a release does not relate to a future or contingent claim. Where a 'release' speaks in terms of a future or contingent claim (Hearn v. Central of Ga. Ry. Co., 22 Ga.App. 1, 7, 95 S.E. 368; McCommons v. Greene County, 53 Ga.App. 171, 174, 184 S.E. 897), it is more accurately denominated 'a covenant not to sue.' Wilder v. Penn. Ry. Co., 245 N.Y. 36, 156 N.E. 88, 52 A.L.R. 188. Thus a covenant not to sue is appropriately described as an agreement not to sue, given in exchange for lawful consideration. At the time such an agreement is given, there is no claim in existence to be released. It speaks of the future, not of the present or past. Since no liability exists, none can be released. Doster v. C. V. Nalley, Inc., 95 Ga.App. 862, 865, 99 S.E.2d 432; Wilder v. Penn. Ry. Co., supra.

On the other hand, a 'release' must come after a cause of action has arisen. It operates to release a tort-feasor on the theory that there should be a just satisfaction and there has been a complete accord and satisfaction. See Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E. 114; Caplan v. Caplan, 62 Ga.App. 577, 9 S.E.2d 96; Moore v. Smith, 78 Ga.App. 49(1), 50 S.E.2d 219; Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860.

'Indemnity' has been defined as 'the obligation or duty resting on one person to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit.' Copeland v. Beville, 93 Ga.App. 442, 92 S.E.2d 54. This is traditionally a covenant by the indemnitor to indemnify or 'save harmless' the indemnitee from claims of third parties, Martin v. American Optical Co., 5 Cir., 184 F.2d 528, 529(2), and sometimes from claims caused by the indemnitee's own fault or negligence. The tendency has been not to sustain an indemnity agreement against the indemnitee's own negligence unless the agreement spells out the indemnitee's obligation in unequivocal terms. See, Batson-Cook Co. v. Ga. Marble etc....