Sorrells v. Atlanta Transit System, Inc., 21927

• Decision Date: 07 February 1963
• Docket Number: No. 21927,21927
• Citation: 218 Ga. 623,129 S.E.2d 846
• Parties: Thomas C. SORRELLS et al. v. ATLANTA TRANSIT SYSTEM, INC.
• Court: Georgia Supreme Court

Page 846

129 S.E.2d 846

218 Ga. 623

Thomas C. SORRELLS et al. v. ATLANTA TRANSIT SYSTEM, INC.

No. 21927.

Supreme Court of Georgia.

Feb. 7, 1963.

Syllabus by the Court

1. Where it appears from the petition that the plaintiffs did not read a release before signing it and were not entitled to rely on representations of the defendant's agent as to the legal effect of the release, the petition failed to set forth a cause of action for its cancellation.

2. The alleged cause of action for damages growing out of the release, and the release not being subject to cancellation on account of alleged fraud, no cause of action against the defendant was alleged and it was not error to sustain the general demurrer and dismiss the petition.

Powell, Goldstein, Frazer & Murphy, James K. Rankin, Atlanta, for plaintiff in error.

Dent Acree, Hugh M. Dorsey, Jr., Jule W. Felton, Jr., Hansell, Post, Brandon & Dorsey, Atlanta, for defendant in error.

ALMAND, Justice.

Thomas C. Sorrells and his wife, Mrs. Alice Sorrells, filed their petition against Atlanta Transit System, Inc., as defendant, seeking to recover damages which the plaintiff husband sustained in a collision between the automobile he owned and was driving and a trackless trolley owned and operated by the defendant. The cause of action based upon the negligence of the defendant was contained in the first 13 numbered paragraphs of plaintiffs' petition.

Plaintiffs alleged certain matters in their petition from paragraphs numbered 14 through 24 inclusive for the purpose of attacking the release and seeking its cancellation on the grounds that it had been obtained from the plaintiffs by fraud and misrepresentation of defendant's claim agent, one J. A. LeVert. A copy of the release sought to be set aside was attached to plaintiffs' petition marked Exhibit 'A' and made a part thereof. As was alleged in paragraph 24 of plaintiffs' petition, the sole reason for the wife, Mrs. Alice Sorrells, being joined with her husband as a party plaintiff was because she had, at the request of LeVert, joined with her husband in the execution of the release sought to be canceled.

The substance of the allegations contained in their petition which sought to avoid the release which they had executed and delivered to defendant are:

That J. A. LeVert, a claim agent for defendant, who was experienced and trained in all legal matters affecting the rights of parties in collision cases, including vehicles which were covered by collision insurance, on inspecting Sorrells' damaged automobile at a repair garage had ascertained that the damage to the car was covered by a policy of collision insurance. He also ascertained that the total amount of the repair bill was $518.29, subject to a $50 deductible to be paid by Sorrells and that the collision insurance carrier of Sorrells was liable to pay the remaining $468.29 thereon. Thus informed, LeVert then contacted plaintiffs for the purpose of negotiating settlement, and at his request plaintiffs gave him full information, not only as to the amount of the automobile repair bill but also as to the medical, eyeglass loss, and other items of special damages, the total being approximately $595. Sorrells was only liable for the payment of $50 deductible on the $518.29 total automobile repair bill as his collision policy covered the remainder of that bill, both LeVert and Sorrells well knowing the same. Sorrells desired to be made whole for the damages he had sustained by reason of the trackless trolley having collided with him, and Sorrells was unwilling to settle on any basis which would not affect his insurance claim of approximately $468. Thereupon, LeVert assured Sorrells that the total amount of the automobile repair bill except for the $50 deductible would be paid by Sorrells' collision carrier to whom Sorrells had already reported the collision. LeVert further assured Sorrells that any settlement he made upon behalf of defendant with plaintiffs would not affect or otherwise impair same. After detailed discussion of the individual items of damages, LeVert finally offered on behalf of defendant to pay plaintiffs $164.50 '* * * on the express understanding that such a settlement would not affect the insurance claim which Sorrells had already made on his insurance policy and which was then pending adjustment. The said LeVert assured plaintiffs that the settlement would not affect the right of Mr. Sorrells to have his repair bill paid by his insurance carrier and further stating that he would prepare the settlement release in such a manner that when the Sorrells signed same it would fully protect them so they could collect the $468.29 due Sorrells by his insurance carrier and thus enable Sorrells to pay Kelly Motor Company the full amount of his automobile repair bill. Moreover, LeVert told the plaintiffs that he was experienced and trained in all legal matters affecting the rights of parties in such cases, whereas plaintiffs were unlearned in such matters having had no knowledge or experience therein as the said LeVert well knew at that time. At said time and place LeVert knew that plaintiffs did not have the equal opportunity or means of knowing the truth of the statements and representations and the nature thereof as did the said LeVert, and that the plaintiffs would rely on his said statements and representations.' (Paragraph 16 of plaintiffs' petition.)

Relying upon the representations of LeVert and particularly being assured that by accepting from defendant the sum of $164.50, Sorrells would not be required to pay the entire $518.29 automobile repair bill but only $50 deductible thereon which was included in the consideration being paid by defendant, and being assured that the release would not cut off or otherwise impair the pending claim under his insurance policy, plaintiffs signed the release, copy of which was attached to their petition as Exhibit 'A.' In so doing, they later discovered that they had signed a general release of all liability, with the result that plain...