James v. Tarpley

Decision Date13 November 1952
Docket NumberNo. 18010,18010
Citation209 Ga. 421,73 S.E.2d 188
PartiesJAMES v. TARPLEY et al.
CourtGeorgia Supreme Court

Wilbur B. Nall, Clinton J. Morgan, Nall & Sterne, Atlanta, for plaintiff in error.

Marshall, Greene, Baird & Neely, W. Neal Baird, Ferdinand Buckley, Atlanta, for defendants in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

This case is the outgrowth of an automobile accident, which occurred on May 7, 1951, involving a car driven by A. R. James and a truck owned by M. R. Tarpley and W. H. Tarpley, doing business as Fairburn Hardware Company, which truck was being driven by Parkner N. Thomas. On May 8, 1951, Archie R. James executed the following release: 'Know all men by these presents, that I/we Archie R. James for the consideration of Six Hundred Three & 19/100 Dollars to me/us in hand paid by M. R. and W. H. Tarpley and Parkner Thomas, the receipt whereof is hereby acknowledged, have released and discharged, and by these presents do for myself/ourselves, my/our heirs, executors, administrators and assigns release and forever discharge the said M. R. and W. H. Tarpley and Parkner Thomas and their heirs, successors, administrators, assigns, employer, employees, bailees, agents and servants of and from all and all manner of actions, causes of action, suits, debts, accounts, judgments, claims and demands whatsoever in law or equity (including loss of services of any other person to which I/we might be entitled) as a result of or growing out of any and all injuries both to persons and/or damages to property resulting or to result or which might result from an accident which occurred on or about the 7 day of May 1951, at Fairburn, Ga., for which injury or injuries and/or damages to property I/we have claimed the said M. R. and W. H. Tarpley and Parkner Thomas to be legally liable, which liability was and is expressly denied. I/we have read the above release and I/we hereunto set my/our hands and seals thils 8 day of May, 1951.'

Subsequently, A. R. James filed an action in Fulton Superior Court against M. R. Tarpley and W. H. Tarpley, doing business as Fairburn Hardware Company, and Parkner N. Thomas, seeking rescission of the foregoing release and damages in the sum of $75,000 for injuries to his person and property, alleged to have been sustained as a result of acts of negligence on the part of the defendant Thomas, the agent and servant of the other named defendants, while acting within the scope of his employment. General and special demurrers were filed to the petition, and thereafter the special demurrer was sustained with leave to the plaintiff to amend by attaching to his petition a copy of the release sought to be cancelled, which the plaintiff did within the time allowed. The plaintiff thereafter amended his petition a second time by adding a prayer that the said release be set aside and cancelled on the ground of mutual mistake. The petition as amended alleged: how the accident happened, described the injuries sustained by the plaintiff, and the damage to his automobile; that on a day after the accident the defendants proposed a settlement, and that at said time the plaintiff did not know or believe he had any injuries other than a laceration on his head which would clear up promptly; that defendants likewise then believed that the plaintiff was not injured except to the extent of having a laceration on his head; that the only other item of damage which either the plaintiff or the defendants knew of was property damage to his automobile; that while plaintiff and defendants were laboring under the mutual mistake of fact as to the extent of the injuries which had been sustained by the plaintiff, the case was settled by the payment to the plaintiff of the sum recited in the release; that, upon discovery that his injuries were serious and permanent, he made a tender back of $603.19 and demanded that the release be rescinded and cancelled; and that the defendants acknowledged the tender, but refused it and declined to rescind said release. It was further alleged that said release, by reason of mutual mistake of fact, is not binding, and that the plaintiff continues his tender. The defendants having renewed their general demurrer to the petition as twice amended, the court entered an order sustaining the demurrer and dismissing the petition, and the appeal is from that judgment. The sole question for determination here is, can a general release, otherwise valid, be set aside on the...

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15 cases
  • Wheat v. Montgomery
    • United States
    • Georgia Court of Appeals
    • October 17, 1973
    ...to execute the releases she is bound by them. Henry v. Allstate Ins. Co., 129 Ga.App. 223, 199 S.E.2d 338. And see James v. Tarpley, 209 Ga. 421 (2), 73 S.E.2d 188. (b) On the matter of whether the plaintiff received compensation for her claim arising out of the death of her son, the genera......
  • Henry v. Allstate Ins. Co.
    • United States
    • Georgia Court of Appeals
    • June 15, 1973
    ...v. State, 226 Ga. 70, 172 S.E.2d 616; Brundage v. Wilkins, 121 Ga.App. 652(2), 175 S.E.2d 108. But see and compare James v. Tarpley, 209 Ga. 421(2), 73 S.E.2d 188, where the facts and the contentions made in this respect were greatly similar to the situation here and the Supreme Court held ......
  • Walsh v. Campbell, s. 48154
    • United States
    • Georgia Court of Appeals
    • October 12, 1973
    ...as great, there was nonetheless no need to rush into the settlement and Mrs. Walsh would be barred by the reasoning of James v. Tarpley, 209 Ga. 421, 73 S.E.2d 188. Finally appellants urge that the reasoning of Blue Ridge Park Nurseries v. Owen, 41 Ga.App. 95, 152 S.E. 485 should be applied......
  • Chitwood v. Southern General Ins. Co.
    • United States
    • Georgia Court of Appeals
    • December 5, 1988
    ...coverage under the policy or pursuant to appellants' uninsured motorist coverage thereunder. See generally James v. Tarpley, 209 Ga. 421, 423(1), 73 S.E.2d 188 (1952). Compare Harden v. Clarke, 123 Ga.App. 142, 179 S.E.2d 667 In opposition to this clear and unambiguous covenant not to sue, ......
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