Jackson v. Dyches, A91A0633

• Citation: 407 S.E.2d 126,200 Ga.App. 174
• Decision Date: 25 June 1991
• Docket Number: No. A91A0633,A91A0633
• Parties: JACKSON v. DYCHES, et al.
• Court: Georgia Court of Appeals

Page 126

407 S.E.2d 126

200 Ga.App. 174

JACKSON v. DYCHES, et al.

No. A91A0633.

Court of Appeals of Georgia.

June 25, 1991.

Brannen, Searcy & Smith, Joseph J. Berrigan, David R. Smith, for appellant.

Kent & Rackett, R. Nathaniel Rackett III, Branan & Brogdon, Wallace M. Brogdon, Jr., for appellees.

POPE, Judge.

Earl Boatright and his wife suffered severe injuries when their automobile was struck by a vehicle driven by Joseph Morgan Jackson. Boatright's wife died as a result of her injuries. Boatright, individually and in his capacity as executor of his wife's estate, settled his claim against Jackson and signed a release in favor of Jackson, his agents, etc., "and all other persons...." Boatright then filed a complaint for damages against defendants Don Dyches and Dyches Construction Company, alleging they were joint tortfeasors with Jackson. Defendants answered and defendant Don Dyches filed a third-party complaint against Jackson for contribution and indemnity for any damages plaintiff may recover from him. Both defendant Dyches and third-party defendant Jackson filed a motion for summary judgment, arguing they had been released from liability by plaintiff Boatright's written release. Both motions were denied. Only third-party defendant Jackson appeals. We affirm.

Of course, the release precludes Boatright from filing a claim for damages against Jackson. The release in no way precludes defendant Dyches from bringing a claim against his alleged joint tortfeasor Jackson. Jackson, however, argues that defendant Dyches was also released by the plaintiff; he argues he cannot be brought in as a third party to the action because the action, itself, cannot be brought against Dyches.

This argument is contrary to the rule announced by the Georgia Supreme Court in Posey v. Med. Center-West, 257 Ga. 55, 59, 354 S.E.2d 417 (1987): "A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others for the same harm, unless it is agreed that it will discharge them. [Cit.] We further add that the intent of the parties to the release regarding its effect may be proven by external evidence as against a third party.... Williams v. Physicians, &c. Hosp., Inc., [249 Ga. 588 (292 SE2d 705 (1982) ]." (Indention omitted.) In Williams, the Supreme Court held that the boilerplate language, "all other persons," when used in a release, does not serve to release a successive tortfeasor who is not named in the release, unless...