Coaxum v. Graham, 57648

• Decision Date: 04 September 1979
• Docket Number: No. 57648,57648
• Citation: 258 S.E.2d 740,151 Ga.App. 75
• Parties: COAXUM et al. v. GRAHAM et al.
• Court: Georgia Court of Appeals

Page 740

258 S.E.2d 740

151 Ga.App. 75

COAXUM et al. v. GRAHAM et al.

No. 57648.

Court of Appeals of Georgia.

Argued April 11, 1979.

Decided Sept. 4, 1979.

Kathleen Horne, Richard A. Rominger, Savannah, for appellants.

Steven E. Scheer, Charles C. Brooks, James F. Becton, Savannah, for appellees.

SHULMAN, Judge.

Walter Graham, a passenger in a taxicab which collided with another car, brought an action to recover for personal injuries against Thomas Coaxum, the driver of the taxi; Savannah Cab Company; and Verden Daniels, the driver of the car involved in the collision. We granted an application for interlocutory review to consider the denial of appellants Coaxum and Savannah Cab Company's motion to strike appellee-Daniels' 6th defense and his 7th defense and cross claim. On appeal, we reverse in part and affirm in part.

1. We agree with appellants' contention that the court erred in denying the motion to strike appellee-Daniels' 6th defense.

Daniels' 6th defense provides: "Defendant Daniels further shows the Court that Savannah Cab Company and Thomas Coaxum have admitted liability to Defendant Verden Daniels to this accident, and they have paid for any damages suffered by Defendant Verden Daniels." A settlement compromise taken by Savannah Cab Company's liability insurance carrier, wherein Daniels agreed to release Savannah Cab Company from property claims arising from the collision, forms the basis for this appellee's 6th defense. As this release would not have been admissible at trial, this appellee's 6th defense should have been stricken on motion. Schaefer v. Mayor etc., of Athens, 120 Ga.App. 301(7), 170 S.E.2d 339; Leidy v. Gould, 37 Ga.App. 410(4), 140 S.E. 400.

We are not persuaded that the release may be admissible against the taxicab driver as an admission of liability by silence. See Code Ann. § 38-409. The release expressly denies liability on the part of Savannah Cab Company; states by its terms that it would not be admissible in any suit for bodily and personal injuries in accordance with Code Ann. § 105-1301a et seq.; and makes no reference whatsoever to co-defendant Coaxum.

2. In his 7th defense and cross claim, Daniels sought indemnification from appellants in the event of a verdict adverse to Daniels. This defense read as follows: "Defendant Verden Daniels shows the Court that should a verdict be returned against him in favor of the Plaintiffs that the Defendants Thomas Coaxum and Savannah Cab Company should be held responsible and indemnify Defendant Verden Daniels for any verdict so rendered." Apparently, appellants do...