Creamer v. Smith

• Decision Date: 17 February 1982
• Docket Number: No. 63017,63017
• Citation: Creamer v. Smith, 287 S.E.2d 755, 161 Ga.App. 312 (Ga. App. 1982)
• Parties: Kathleen M. CREAMER v. Jack R. SMITH, Jr.
• Court: Georgia Court of Appeals

Page 755

287 S.E.2d 755

161 Ga.App. 312

Kathleen M. CREAMER v. Jack R. SMITH, Jr.

No. 63017.

Court of Appeals of Georgia.

Feb. 17, 1982.

Gilbert H. Deitch, Gerald B. Kline, Atlanta, for appellant.

John F. Pendergast, Jr., Atlanta, for appellee.

CARLEY, Judge.

A collision between appellant's and appellee's automobile occurred on July 12, 1980. Apparently several subsequent discussions and exchanges of correspondence between appellee and appellant's counsel took place regarding the property damage appellant had incurred in the collision. The subject of appellant's claim for personal injury damages arising from the collision was never specifically addressed. In the last week of August 1980, appellee phoned appellant and "inquired about the property damage to [her] automobile." In that conversation appellee "advised that he was going to send [appellant] a check for the damages to [her] automobile." In September appellant received a check from appellee in the mail which contained the following typed release language: "Endorsement and Payment constitutes a release for damages for car accident July 12, 1980." Appellant endorsed the check below the above quoted language and cashed it without conferring with her counsel, believing "the release was for the property damage."

On October 24, 1980, appellant filed suit against appellee seeking a recovery of damages as a result of personal injuries sustained in the collision. Appellee raised the release as a defense to the action and subsequently moved for summary judgment on that ground. The trial court found that appellant "generally released [appellee] from any and all alleged claims and liability arising out of the automobile accident between the parties on July 12, 1980" and granted the motion for summary judgment. It is from this order that appellant brings the instant appeal.

Appellee asserts that the release he secured by appellant's endorsement on the check constitutes a "general release" and that, there being no artifice, trick, or fraud preventing appellant from reading it, the release is binding on appellant and precludes her suit for personal injuries. See generally Quinn v. Samples, 156 Ga.App. 168, 274 S.E.2d 141 (1980).

A general release is "one that releases the alleged tortfeasor from liability for all claims arising out of an occurrence, [and] in the absence of fraud such release will bar any cause of action by the person executing such release. [Cit.] Yet..., a release that by its terms relates solely to designated property damage and does not include a complete release may be executed and will be enforced according to its terms." (Emphasis supplied.) Glover v. Southern Bell Telephone & Telegraph Co. et al, 229 Ga. 874, 875(1), 195 S.E.2d 11 (1972). Although appellant in the instant case apparently suffered both personal injury and property damages in the collision, the "release" obtained by appellee was not " 'from any and all actions, causes of action, damages or demands of whatever name or nature in any manner arising...' " Bennett v. Dove, 93 Ga.App. 57(4), 90 S.E.2d 601 (1955). Neither, by its terms, did the "release" refer to "all damages" appellant suffered in the collision. Compare Townsend v. Lewis, 122 Ga.App. 135, 176 S.E.2d 457 (1970). Nor did the "release" go to appellee's " 'further obligation' " to appellant Mullinax v. Shaw, 143 Ga.App. 657, 239 S.E.2d 547 (1977) or evidence " 'a full release of all claims.' " Garrett v. Heisler, 149 Ga.App. 240, 241, 253 S.E.2d 863 (1979); Riker v. McKneely, 153 Ga.App. 773, 266 S.E.2d 553 (1980). See alsoDaniel v. Conrad, 242 Ga. 119, 249 S.E.2d 603 (1978); Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 239 S.E.2d 381 (1977).

We find no cases, and appellee cites us to none, which hold that a mere pre-litigation release of "damages" without more is a release of all claims arising out of an occurrence when both property and personal injury damages are involved. We hold that a mere release of "damages" is ambiguous in a context where there are both property and personal damages in issue, (see State Farm Fire & Casualty Co. v. Fordham, 148 Ga.App. 48, 52(2), 250 S.E.2d 843 (1978)), the language being susceptible of contraction as either...