Smoot v. State Farm Mutual Automobile Insurance Co.

• Decision Date: 15 October 1964
• Docket Number: 21129.,No. 20923,20923
• Citation: 337 F.2d 223
• Parties: Harvey Thomas SMOOT, Jr., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees. Katie Mae DONALDSON and William M. Donaldson, Appellants, v. Harvey Thomas SMOOT, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

337 F.2d 223 (1964)

Harvey Thomas SMOOT, Jr., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.

Katie Mae DONALDSON and William M. Donaldson, Appellants, v. Harvey Thomas SMOOT, Jr., et al., Appellees.

Nos. 20923, 21129.

United States Court of Appeals Fifth Circuit.

October 15, 1964.

No. 20923:

Alton D. Kitchings, Savannah, Ga., for Harvey T. Smoot.

Alex A. Lawrence, James W. Head, Luhr G. C. Beckmann, Jr., Savannah, Ga., Kirk McAlpin, Atlanta, Ga., Hitch, Miller, Beckmann & Simpson, Savannah, Ga., Bouhan, Lawrence, Williams & Levy, Savannah, Ga., for appellees.

No. 21129:

Anton F. Solms, Jr., James W. Head, Savannah, Ga., for Katie M. and W. J. Donaldson.

Kirk McAlpin, Atlanta, Ga., Alton D. Kitchings, Alex A. Lawrence, Luhr G. C. Beckmann, Jr., Savannah, Ga., for appellees.

Before BROWN and BELL, Circuit Judges and SPEARS, District Judge.

PER CURIAM.

By our prior decision in 1962, Smoot v. State Farm Mutual Auto. Ins. Co., 5 Cir., 1962, 299 F.2d 525, we reversed and remanded the case for a trial of the Assured's claim that the Insurer was liable for the excess of the damage-claimant's judgment over the policy limits. On the eve of that trial, the Insurer, under F.R. Civ.P. 19(b), sought to bring in the Donaldsons, the damage-claimant-judgment creditors, as necessary parties. The theory asserted in this amended answer was that by conduct of the judgment creditors there had been an accord and satisfaction of the judgment against the Assured Smoot. If that were so, there would then be nothing to try in the suit of the Assured vis-a-vis the Insurer. Though objecting to this unorthodox transmutation of the Assured's suit into a trial of rights as between the Assured and his recent (and continuing) adversaries, the Assured waived the requirement of time. That limited case proceeded to trial before a jury. After denial of motions for directed verdict, the jury found, in effect, accord and satisfaction. The Donaldsons appeal. Smoot, as a protective measure in the event the Donaldsons prevail, also appeals.

Without undertaking to determine whether this procedure was a permissible application of F.R.Civ.P. 19(b), we are of the clear view that under controlling Georgia principles by which we are Erie-bound, there was as a matter of law no accord and satisfaction as there was no condition of payment express or implied. See American Associated Cos., Inc. v. Vaughn, 1957, 213 Ga. 119, 97 S.E.2d 144; Rivers v. Cole Corp., 1952, 209 Ga. 406, 73 S.E.2d 196; Sylvania Electric Products Inc. v. Electrical Wholesalers Inc., 1945, 198 Ga. 870, 876, 33 S.E.2d 5 (dissenting opinion). The trial Court should therefore have directed a verdict for the Donaldsons.

The District Court's judgment¹ was erroneous and must be reversed. This means that the declaration that the State Court judgments are satisfied, paid and execution cancelled are therefore vacated and reversed. Likewise the entries on the execution docket...