Collins v. Louisville & Wadley R. Co.

Decision Date30 September 1955
Docket NumberNo. 2,No. 35817,35817,2
Citation92 Ga.App. 814,89 S.E.2d 908
CourtGeorgia Court of Appeals
PartiesW. 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: 'That said plaintiff freely and eagerly entered into said agreement for settlement, and agreed that the voucher paying him said sum might be mailed to him at his address in LaGrange, Georgia, within the reasonably short time required for the voucher to approved and issued by the treasurer in the usual course of such remittances which required a few days. On August 21, 1953, a voucher in said amount, No. B210, made payable to the plaintiff, was mailed from the office of the treasurer in the United States Post Office in Savannah, Georgia, by placing the same in a properly addressed and stamped envelope to Mr. W. G. Collins, 102 Johnson Street, LaGrange, Georgia. Said envelope containing said voucher arrived at the U. S. Post Office in LaGrange, Georgia on or about August 23, 1953, and receipt of same by plaintiff was refused, the U. S. Post Office in LaGrange placing the entry on the envelope 'Refused' and returning same to the offce of the treasurer of the defendant company, said refused voucher being received back on August 26, 1953, all of which was within a week of the signing of said settlement agreement as aforesaid.' 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.

GARDNER, Presiding Judge.

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...

To continue reading

Request your trial
4 cases
  • Mesa v. Poole, s. 47547
    • United States
    • Georgia Court of Appeals
    • October 25, 1972
    ...100 S.E.2d 577. Otherwise, he is bound by the terms of the release. Kennedy v. Bateman, 217 Ga. 458, 123 S.E.2d 656; Collins v. L. & W.R. Co., 92 Ga.App. 814, 89 S.E.2d 908; Southern Stages, Inc. v. Fullington, 66 Ga.App. 773(1), 19 S.E.2d 3. If we accept the implications of the defendant's......
  • Venture Const. Co. v. Great Am. Mortg. Investors
    • United States
    • Georgia Court of Appeals
    • March 14, 1975
    ...this would be true whether the new agreement had been actually performed or not.' (Emphasis supplied.) Accord, Collins v. Louisville etc., R. Co., 92 Ga.App. 814, 89 S.E.2d 908; Doyal v. Ben O'Callaghan Co., 132 Ga.App. 336, 208 S.E.2d 136. For, 'After such latter contract (of accord and sa......
  • National Sur. Corp. v. Hunt, 39155
    • United States
    • Georgia Court of Appeals
    • November 20, 1961
    ...a demurrer after the petition is materially amended will be treated as an abandonment of the demurrer. Collins v. Louisville & Wadley R. Co., 92 Ga.App. 814, 816, 89 S.E.2d 908. (However, the renewal or reinsistence upon the demurrer may be done orally as well as in writing. Pollock v. City......
  • Shaver v. Oliver
    • United States
    • Florida District Court of Appeals
    • January 18, 1966
    ...and SWANN, JJ. PER CURIAM. Affirmed. See: Hofland v. Gustafson, 132 Cal.App.2d Supp. 907, 282 P.2d 1039; Collins v. Louisville & Wadley Railroad Company, 92 Ga.App. 814, 89 S.E.2d 908; Kahn v. Brunswick-Balke-Collender Co., Mo.App.1941, 156 S.W.2d 40; Johnson v. Norfolk, 76 S.D. 565, 82 N.W......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT