Giles v. Smith

• Decision Date: 05 December 1949
• Docket Number: No. 32464.,32464.
• Citation: 80 Ga.App. 540,56 S.E.2d 860
• Parties: GILES et al. v. SMITH et al.
• Court: Georgia Court of Appeals

56 S.E.2d 860

80 Ga.App. 540

GILES et al.

v.SMITH et al.

No. 32464.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1949.

Action by H. V. Smith and others against C. L. Giles and others for damage to plaintiff's truck resulting from a collision between the plaintiff's truck driven by their servant, and the truck of defendant, driven by defendant's servant. The defendants filed a cross action and by way of a plea in bar, alleged that plaintiffs settled with defendant's driver for all injuries and loss of earnings suffered by said driver as result of said collision by taking a release relieving the plaintiffs of all claims of the defendant's driver resulting from said accident, and the plaintiffs demurred.

The City Court, Floyd County, James F. Kelly, J., overruled the plaintiff's demurrer to the plea in bar, and directed a verdict for the defendants on the plaintiff's action, and left defendant's cross action for damages for the determination of a jury and which returned a verdict for plaintiffs and their motion for new trial on the main case was overruled and they brought error.

The Court of Appeals, MacIntyre, P. J., held that the release by the plaintiffs of defendant's driver from all driver's claims growing out of collision and payment of sum by the plaintiffs to defendant's driver constituted a settlement of all claims between the parties growing out of the collision and affirmed the judgment.

Syllabus by the Court.

Where in an action for damages growing out of a collision between the truck of the plaintiffs, driven by their servant, and the truck of the defendants, driven by their servant, which resulted in certain property damage to the plaintiffs' truck and certain personal injuries to the defendants' servant, and it appears that the plaintiffs and the defendants' servant enter into an agreement whereby the defendants' servant for and in consideration of the payment of a certain sum by the plaintiffs the servant releases the plaintiffs from all claims, anticipated and unanticipated, growing out of the collision, the release constitutes a settlement of the plaintiffs' claims against the servant, and a settlement of the plaintiffs' claims against the servant necessarily constitutes a release of the defendants as there can be only one satisfaction of the same injuries.

C. L. Giles and Paul A. Harper, a partnership, doing business as Leeds Motor Company brought an action for damages against H. V. Smith and Samuel G. Moss, Jr., a partnership, doing business as Delux Cleaners. The recovery sought in the petition, as amended, was the damage to, and the loss of the use of, the plaintiffs truck, resulting from a collision between the plaintiffs' truck and defendants' truck, which was allegedly due solely to the negligence of the defendants' driver, J. W. Jackson. The defendants answered, denying liability, alleging that the collision was due solely to the negligence of the plaintiffs' driver, seeking a recovery for the damage done to their truck; and, by way of a plea in bar, alleged: "the plaintiffs settled with the said Jackson [defendants' driver] for all injuries and loss of earnings suffered by the said Jackson as a result of said collision, and paid to the said Jackson * * * $275, taking a release from him relieving the said plaintiffs of all claims, anticipated and unanticipated, of the said Jackson resulting from said accident." The plaintiffs demurred to, and moved to strike, the paragraphs of the answer setting up the plea in bar. The demurrer was overruled, and the plaintiffs filed their exceptions pendente lite. Upon the trial of the case, the court directed a verdict for the defendants on the main case and left the cross-action for the determination of the jury, which returned a verdict for the plaintiffs. The plaintiffs filed their motion for a new trial on the main case, which was overruled and they excepted.

Gary Hamilton, Rome, for plaintiffs in error.

Wright, Rogers, Magruder & Hoyt, Rome, Henry J. Fullbright, Jr., Rome, for defendants in error.

MacINTYRE, Presiding Judge.

1. (a) A master is liable for the torts of his servant committed within the scope of his employment, Code, § 105-108;

(b) A servant, as a wrongdoer, is liable individually for a tort committed within the scope of his master's business, Southern Railway Co. v. Grizzle, 124 Ga. 735, 53 S.E. 244, 110 Am.St.Rep. 191;

(c) A master and his servant may be jointly sued for damages resulting solely from the negligence of the servant, Southern Railway Co. v. Grizzle, supra; Southern Railway Co. v. Harbin, 135 Ga. 122, 68 S.E. 1103, 30 L.R.A., N.S., 404, 21 Ann.Cas. 1011; Fowler v. National City Bank of Rome, 49 Ga.App. 435, 176 S.E. 113;

(d) The liability of the master and of the servant is joint and several;

(e) Although the liability of the master and the servant is joint and several, the same principles apply to them in an action based solely on the negligence of the servant as would apply in actions against joint tort-feasors. McLaughlin v. Siegel, 166 Va. 374, 185 S.E. 873;

(f) A single wrongful or negligent act which injures both one's person and one's property gives one but a single cause of action, Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 62 A.L. R. 256; Western & A. R. Co. v....