Collins v. Louisville & Wadley R. Co.
Decision Date | 30 September 1955 |
Docket Number | No. 2,No. 35817,35817,2 |
Citation | 92 Ga.App. 814,89 S.E.2d 908 |
Court | Georgia Court of Appeals |
Parties | W. G. COLLINS v. LOUISVILLE & WADLEY RAILROAD COMPANY |
Syllabus by the Court.
The court did not err in overruling the demurrer nor in directing a verdict for the defendant.
At the November Term 1954, W. G. Collins (hereinafter called the plaintiff), filed suit in the Superior Court of Jefferson County against the Louisvill & Wadley Railroad Company (hereinafter called the defendant) to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The defendant filed its answer in which it rested the defense upon the theory that by contract the plaintiff and the defendant had fully settled the question of compensation. The plaintiff demurred to the plea and the court overruled the same. Thereafter the defendant, by amendment, added a paragraph numbered 36 in which paragraph 36 of the original answer was stricken. Paragraph 36 as amended reads: This paragraph set out somewhat in detail a portion of the settlement contract between the parties. We think it well to set forth the entire contract between the parties as follows: 'Dublin, Ga., August 19, 1953. Louisville & Wadley Railroad Company: To: W. G. Collins, Dr.: For, and in full release, discharge, satisfaction and compromise of all claims, demands or cause of action, directly or indirectly, arising from or growing out of accident which occurred January 9, 1953 near 1 M. P. around 8:00 P. M. which resulted in a broken right leg. (1/2 of $1948.45--earnings made by regular conductor January 9th through August 15, 1953--$974.23
Approved: D. C. Rogers, President and General Manager.
'Release: Received of Louisville & Wadley Railroad Company $974.23 in full for the above account and in consideration of said payment . . . I hereby compromise said claim, and acquit, discharge, and release said company and other persons or companies that may be liable therefor, their agent, officers, and other employees of and from any and all liability for said accident and injury or any results, direct or indirect, arising therefrom, and acknowledge full accord and satisfaction therefor. And I hereby expressly state that the above consideration is in full for this release, and that there is no understanding or agreement of any kind for any further or future consideration whatsoever, implied, expected or to come to me in money, employment or otherwise. This 19th day of August, 1953. [Signed] W. G. Collins
Witnesses: Holt T. Michael, E. E. Dowling. (Seal Affixed)'
After overruling the defendant's demurrer the court ordered the case to trial. The plaintiff assumed the burden of proof, thereby admitting a prima facie case by admitting the signing of the release agreement. After evidence was introduced and after argument, the court directed a verdict for the defendant on the issue presented by the plea in the amount for which suit was brought. There was no motion for new trial. The plaintiff duly presented his bill of exceptions and brought the case to this court for review on a question of law only.
Olin B. Gannon, Jr., Lousiville, Oliver, Davis & Maner, Savannah, for plaintiff in error.
Price, Spivey & Carlton, swainsboro, for defendant in error.
1. It is our opinion that paragraph 36 of the amended plea of settlement is a general demurrer, and the court did not err in overruling it. We think the amendment is allowable because it merely alleged facts in explanation of certain terms in the contract. We do not think the question of the general demurrer to the petition before amendment is before this court for the reason that that must be treated as abandoned, since they were not renewed and insisted upon after amendment. See General Accident, Fire & Life Assur. Corp. v. Way, 20 Ga.App. 106(2), 92 S.E. 650; Mauldin v. Mauldin, 25 Ga.App. 743(2), 105 S.E. 252; and Howard v. Allgood, 143 Ga. 550(16), 85 S.E. 257.
We might state here that, when the plaintiff assumed the burden of proof by admitting a prima facie case, the court in a colloquy with counsel stated that in assuming the burden of proof the defendant would have to prove that the settlement contract was procured by fraud. There is no evidence or argument to the effect that any fraud was perpetrated on the defendant. He induced them to sign the settlement contract.
2. The plaintiff relies for a reversal on two contentions: (a) That the agreement between the parties was such that to be enforceable the money should have been paid simultaneously by the defendant to the plaintiff when the instrument of settlement was signed. In our opinion this proposition is not tenable under the record in this case. By evidence introduced under the amended plea of the plaintiff the payment was to be made by the defendant to the plaintiff by check from the office of the railroad...
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