Moore v. Smith

• Decision Date: 17 November 1948
• Docket Number: No. 32091.,32091.
• Parties: MOORE. v. SMITH.
• Court: Georgia Court of Appeals

50 S.E.2d 219

MOORE.

v.SMITH.

No. 32091.

Court of Appeals of Georgia,

Division No. 2.

Nov. 17, 1948.

Error from City Court of Carrollton; Robert D. Tisinger, Judge.

Action by Clarence Smith against Billie Lee Moore and another arising out of automobile accident. To review a judgment for plaintiff against named defendant, the named defendant alone brings error.

Affirmed.

Claude Driver, of Buchanan, and Willis Smith, of Carrollton, for plaintiff in error.

Don Howe, of Buchanan, and Emmett Smith, of Carrollton, for defendant in error.

MacINTYRE, Presiding Judge.

Clarence Smith, the defendant in error, filed an action for personal injury damages and medical and hospital expenses accruing to him as a result of an automobile accident of which he was the victim on March 18, 1947, naming as joint defendants Mrs. Thelma Odessa Stevens, a resident of California, Billie Lee Moore, the plaintiff in error, and J. C. Parrish, as the principal of Billie Lee Moore and owner of the car which Moore was driving at the time of the accident, and alleging that the accident was due to the negligence of Mrs. Stevens and of Moore. Prior to the trial of the case the plaintiff by amendment struck from the suit the name of Mrs. Stevens as a party defendant. The trial was had on September 19, 1947, in the City of Carrollton and resulted in a verdict against the defendant Moore, but in favor of the defendant Parrish, and judgment was entered in accordance therewith. Billie Lee Moore filed a motion for a new trial and an amendment thereto, which mo tion after a hearing was overruled, to which judgment he excepted.

1. The first ground of the amendment of the motion for a new trial alleged as grounds therefor the discovery of new evidence in the case which if it had been known at the time of the trial would have been a bar to the recovery of the plaintiff against the defendant Moore and attached thereto was the joint affidavit of Moore and his counsel alleging that in the exercise of ordinary diligence they could not have discovered the evidence. It appears from this ground that on August 29, 1947, the plaintiff executed an instrument which was made a part of the motion and which was as hereafter appears: "Georgia, Fulton County.

"For and in consideration of the sum of Twelve Hundred Fifty & No/100 ($1250.-00) Dollars, in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, we do hereby agree and covenant not to institute any suit or action at law or at equity against Thelma Odessa Stevens and Lewis A. Stevens by reason of any claim which we now have or which we may have had or which we may hereafter have against the said Thelma Odessa Stevens and Lewis A. Stevens by reason of any personal injury or property damage sustained by us on or about the 18th day of March, 1947, growing out of a collision between a 1941 Chevrolet automobile operated by said Clarence Smith, with a 1939 Chevrolet Coach operated by Mrs. Thelma Odessa Stevens, and a 1939 Ford Sedan operated by Billie Lee Moore, said collision taking place on the above mentioned date in Haralson County on U. S. Highway No. 78 approximately one mile east of Bremen, Georgia.

"In witness whereof, we have hereunto set our hands and affixed our seals, this the 29th day of August, 1947."

The instrument was signed and sealed by Mrs. Mozelle Smith and Clarence Smith and was notarized.

It is true as contended by the plaintiff in error that there can be but one satisfaction of the same damage or injury; and that, if, instead of merely dismissing his suit against one of two defendants suedjointly, the plaintiff proceeds, for a consideration, to fully settle and satisfy his claim against one, he cannot by the terms of such accord and satisfaction, where the injury or damage complained of is the same, limit the release to the defendant thus dealt with, but in such case the claim itself becomes extinguished. Donaldson v. Car-michael, 102 Ga. 40(2), 42, 43, 29 S.E. 135; Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga.App. 450, 120 S.E. 789; Cap-Ian v. Caplan, 62 Ga.App. 577, 9 S.E.2d 96. However, there is a decided difference between the consequence of an accord and satisfaction, or release of one of the defendants, and that of a mere covenant not to sue one of the defendants.

"Section [20-909] of our Code is as follows: 'A covenant never to sue is equivalent to a release; so, also, a bond to indemnify a debtor against his own debt.' It is noticeable that this section does not say that a covenant not to sue or to indemnify one against his own debt is a release, but that it is equivalent to a release. It is noticeable also, that the latter clause of the section says, against his own debt, and does not say against his liability on a debt on which he is liable, jointly with others. And this language is very significant, for it is precisely the language of the common law. The doctrine that a covenant not to sue or a bond to indemnify one against his own debt is equivalent to a release, is found in Bacon's Abridgment, Release (a,) and is a familiar doctrine to every student of the old books. But the decisions are, so far as I can find, uniform that this doctrine does not, in any case, apply where the covenant refers to a debt on which the covenantee is not liable alone, but is liable jointly or severally with others. In Lucy v. Knyaston, 2 Sackield, 575; 1 Lord Raymond, 688, the Court, after laying down, in strong terms, that a covenant of A not to sue a debt he has against B, or to indemnify B against such debt is equivalent to a release, says: 'Because then one should precisely recover the same damages that he suffered by the other bringing the suit. A is bound to B, and B covenants never to put the bond in suit against A; if, after, B will sue A on the...