Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Hill

• Decision Date: 20 January 1966
• Docket Number: 41741,Nos. 41716,No. 3,s. 41716,3
• Citation: 148 S.E.2d 83,113 Ga.App. 283
• Parties: PENNSYLVANIA THRESHERMEN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY v. Rhode HILL. Rhode HILL v. PENNSYLVANIA THRESHERMEN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 83

148 S.E.2d 83

113 Ga.App. 283

PENNSYLVANIA THRESHERMEN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY v. Rhode HILL.

Rhode HILL v. PENNSYLVANIA THRESHERMEN & FARMERS MUTUAL CASUALTY INSURANCE COMPANY.

Nos. 41716, 41741.

Court of Appeals of Georgia, Division No. 3.

Jan. 20, 1966.

Rehearing Denied March 9, 1966.

Syllabus by the Court

1, 3. (a) A partial payment by a third party to one having an unliquidated damage claim against his minor son, not tendered or made in full and complete settlement of the claim, is but a pro tanto payment and does not amount to an accord and satisfaction.

(b) The holder of the claim may, after accepting the partial payment, make a valid assignment of the portion that remains.

2. Where it is alleged that a specified payment was made to cover 'inconvenience and loss of use' of an automobile, a demurrer calling for the number of days the car was out of use should be sustined; however, if loss of use is not an element for which recovery is sought it is not error to overrule it.

4. Where the evidence does not authorize a finding of accord and satisfaction, a charge on that principle is erroneous.

5. It is not error to fail to give an unrequested charge defining the preponderance of the evidence.

Rhode Hill attended an evening social function at the home of his friend, Bob Tabaka, taking a girl friend in the family car of his father. His brother, who also attended the function, took the car and left Rhode and his girl friend without transportation. When the time came to leave Rhode approached his friend Bob and asked about borrowing a car for taking the girl home. Bob had none save an Austin-Healey sport car that belonged to his brother, Jan Tabaka. Jan had left the car with Bob when he went to a job in Augusta but admonishing that he should under no circumstances lend it or permit anybody else to drive it. Rhode was aware of the instructions but pressed Bob to let him use the car, assuring him that he would just take the girl home and bring the car back immediately. Bob reluctantly agreed. Rhode took the girl home and on the way back lost control and wrecked the car when it struck a bridge abutment. He promptly reported the matter to Bob, expressing his deep regret.

Rhode had never before driven an Austin-Healey sport car and was unfamiliar with its operation. The steering was very sensitive and his unfamiliarity with that may have been the cause of his driving into the bridge abutment. He was not a generally experienced driver, having received his driver's license on his 16th birthday only a matter of two or three weeks before that night. The speed limit along the street on which he traveled returning to the Tabaka home was 40 miles per hour, save in the area posted at 25 miles per hour near the Westminster schools. He was in the posted zone when the accident occurred and admitted that he was driving 40 miles per hour. By the city ordinance regulating speed on that street the reduced limit was effective if signs notifying of it were posted. Rhode knew of the signs and of their having been posted. The signs did not limit the reduction to any specified hours, but were general.

When the owner of the car, Jan Tabaka, came home from Augusta he reported the matter to Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company, with whom he carried One Hundred Dollar deductible collision insurance on the Austin-Healey. He had the Austin-Healey dealer to examine the car, and his opinion was that the cost of repairs was in excess of its value. However, on a trade for another of the same make, year model, color, etc., he was willing to offer $1,200 for the salvage. Pennsylvania Thresherman was willing to pay no more than $1,805.51 less $100 deductible, or $1,705.51 in settlement of the collision loss. Tabaka could not effect a trade for the Austin-Healey of the same year model, color, etc. for the combined allowance of $1200 for the salvage and the $1,705.51 to be paid in by the insurance company, and he went to see Rhode's father, Mr. Harvey Hill, to discuss the matter with him. The father wished to see Tabaka's position restored without additional cost to him, suggested that he ascertain the amount of 'out of pocket' difference involved and let him know so that he could make him whole.

Tabaka traded, and the additional amount necessary to be paid to the dealer, together with his expense of making a trip from Augusta to Atlanta for that purpose, was $432. He so informed young Hill's father. A few days later, on July 3, 1962, Mr. Hill issued his personal check for $432 payable to Tabaka's father and mailed it to him along with a letter explaining that it was to reimburse Tabaka's son 'for the difference in what the insurance company would pay for restoring the car and the amount necessary to get Jan another Austin-Healey.' Mr. Tabaka indorsed the check and passed the proceeds along to his son, Jan.

Thereafter, on September 14, 1962, Pennsylvania Threshermen delivered its draft to Jan Tabaka $1,705.51 and took from him a release including an assignment of his right of action against Rhode Hill.

Pennsylvania Threshermen then brought suit against Rhode Hill, and the father, Harvey Hill, Sr., was appointed guardian ad litem to represent him in the litigation. Defensive pleadings, including a plea of accord and satisfaction, were filed. The mater was tried before a jury and a verdict upholding the plea of accord and satisfaction was returned June 14, 1965. To a denial of a judgment n.o.v. for the plaintiff on the issue of liability and the denial of a new trial the plaintiff excepts, enumerating as errors the overruling of those motions and certain excerpts from the charge.

There is a cross-appeal by the defendant in which the overruling of certain demurrers to the petition were enumerated as errors.

Greene, Neely, Buckley & DeRieux, Thomas B. Branch, III, Atlanta, for appellant.

Smith, Ringel, Martin & Lowe, Meade Burns, Atlanta, for appellee.

EBERHARDT, Judge.

Since the cross-appeal deals with the matter of pleadings we first dispose of the issues raised in it.

1. Defendant demurred to the petition on the ground that there was not a full assignment of the chose in action and as a matter of law there could be no partial assignment.

It appears from the allegations of the petition that the payment made by Rhode Hill's father in the sum of $432 was prior to the settlement by Pennsylvania Threshermen with Jan Tabaka, in connection with which it took from him the assignment sued upon. We must, therefore, consider the effect of Mr. Hill's payment. It is alleged that it was the intention that the $432, being paid in reimbursement for the items (a) $100 represented by the amount deductible from the loss under the insurance policy, and (b) the inconvenience and loss of use of his automobile which Jan P. Tabaka experienced as a result of the collision and damage, was in full payment for all loss and damages suffered over and above the $1705.51 which was paid by the plaintiff, Pennsylvania Threshermen, and that it was never the intention that this payment be in settlement or satisfaction for the entire damage.

Under the allegations of the petition the payment by Hill's father was a pro tanto payment, simply extinguishing that much of Tabaka's claim. It does not appear to have been tendered or made in full settlement or satisfaction. There existed no legal obligation on the part of Mr. Hill to pay Tabaka anything on account of the action of his son resulting in the loss of Tabaka's car. Thus, as to him, it was a voluntary payment. If he had not made the payment his promise to do so would have been unenforceable. Whelan v. Edwards & Hackney, 29 Ga. 315.

'A payment or other performance by a third person, accepted by a creditor as full or partial satisfaction of his claim, discharges the debtor's duty in accordance with the terms on which the third person offered it.' Restatmeent, Contracts § 421 (1932). To the same effect, 1 C.J.S. Accord and Satisfaction § 12, p. 482. This rule was applied in Willcox v. Cobb, 58 Ga.App. 39, 197 S.E. 517, and we think it in harmoney with what was held in Whelan v. Edwards & Hackney, supra. The suit in that case was brought against the volunteer-not against the debtor. Consequently the statement in the opinion that 'Even if Edwards had got the one hundred and fifty dollars in money, what would prevent him from collecting the debt from the son? If another man pays my debt for me, without my consent, it is no payment for me. I remain liable,' is obiter. That question was not before the court.

We do not overlook the rule that a person may have but one satisfaction for his injuries, whether to his person or to his property. Code § 105-2001; Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135; Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 62 A.L.R. 256; Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga.App. 450, 120 S.E. 789; Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E. 114.

But '(t)here is a genuine distinction between a satisfaction and a release. A satisfaction is an acceptance of full compensation for the injury; a release is a surrender of the cause of action, which may be gratuitous, or given for an inadequate consideration.' Prosser, Torts, p. 268 (3d Ed.). Tabaka gave no release in connection with the payment from Mr. Hill, and Mr. Hill obtained none. He simply made a payment which, together with that expected to be obtained from the insurance company and the sale of the salvage, would make 'full compensation' by restoring Tabaka to his position.

As Dean Prosser points out, if the injured party gives a release, upon a valuable consideration-whether amounting to full compensation or not-the cause of action is surrendered, and since there is only one cause of action, all joint tortfeasors are released. ¹ But if there is no release, and the payment is not made and accepted as 'full compensation' it is only a pro...