Cox v. Travelers Ins. Co.
| Decision Date | 06 January 1972 |
| Docket Number | No. 26745,26745 |
| Citation | 228 Ga. 498,186 S.E.2d 748 |
| Parties | Joe COX v. TRAVELERS INSURANCE COMPANY. |
| Court | Georgia Supreme Court |
F. H. Boney, Summerville, for appellant.
Robert Edward Surles, Summerville, for appellee.
Syllabus Opinion by the Court
Joe Cox was involved in an automobile collision with an automobile owned by Johnny D. Scoggins and driven by his wife, Mildred A. Scoggins. The scogginses were insured by the Travelers Insurance Company. Cox sued the Scoggins in tort for damages, and upon the trial of that case a verdict and judgment was returned for the defendants. He then brought the present suit against the Travelers Insurance Company on the theory that shortly after the collision and before suit was filed against the Scogginses, Travelers had entered into an oral contract with him to pay an agreed sum of money as compensation for his damages growing out of the collision and in return for certain promises on his part, and had thereafter breached that contract by refusing to pay the amount agreed upon although he had performed his part of the agreement. The trial court denied the defendant's motion for a summary judgment, certifying that judgment for immediate review. On appeal to the Court of Appeals, that court reversed the judgment on the theory that Cox, by suing the Scogginses after entering into the contract with Travelers, had made an election between two available remedies and was thus barred from pursuing his remedy against the Travelers on the contract. Travelers Insurance Co. v. Cox, 124 Ga.App. 337, 183 S.E.2d 610.
We granted certiorari. Prior to the effective date of the Civil Practice Act, a plaintiff was permitted to 'pursue any number of consistent concurrent remedies against different persons' until he obtained a satisfaction from some of them. Former Code § 3-114. Equitable Life Assurance Society v. May, 82 Ga. 646, 655, 9 S.E. 597. This provision of the Code was uniformly held to bar the pursuit of two inconsistent remedies. Two remedies were inconsistent if the assertion of one involved the negation or repudiation of the other. Peterson v. Lott, 200 Ga. 390, 394, 37 S.E.2d 358; Georgia Power Co. v. Fountain, 207 Ga. 361, 366, 61 S.E.2d 454. However, by § 45 of the Act approved March 30, 1967 (Ga.L.1967, pp. 226, 247), amending the Civil Practice Act former Code § 3-114 was amended to read: 'A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.' Code Ann. § 3-114. The modification of the former Code section which had been based on the Equitable Life Assurance Society case by an enactment of the legislature was...
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