Wheat v. Montgomery

• Decision Date: 17 October 1973
• Docket Number: No. 3,No. 48627,48627,3
• Citation: 130 Ga.App. 202,202 S.E.2d 664
• Parties: Joann WHEAT v. James H. MONTGOMERY
• Court: Georgia Court of Appeals

Page 664

202 S.E.2d 664

130 Ga.App. 202

Joann WHEAT v. James H. MONTGOMERY.

No. 48627.

Court of Appeals of Georgia, Division No. 3.

Oct. 17, 1973.

Rehearing Denied Nov. 2, 1973.

Schwall & Heuett, Lee S. Alexander, Atlanta, for appellant.

Henning, Chambers & Mabry, Peter K. Kintz, Eugene P. Chambers, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Mrs. Joann Wheat brought suit against James H. Montgomery for damages alleged to arise from the wrongful death of her minor child who had been struck by the Montgomery car and fatally injured as he crossed a street in traffic. The defendant filed several defenses, including that of accord and satisfaction alleged to have been effected by releases signed by the plaintiff, and on the basis thereof moved for summary judgment. Plaintiff's deposition was obtained and tendered at the hearing, along with affidavits of plaintiff and her husband and of Charles Cook, an adjuster who issued drafts and obtained the releases on behalf of the defendant and his liability insurance carrier, of the plaintiff and her husband, and a certificate from a doctor to the effect that when the releases had been obtained plaintiff was taking a tranquilizer (Librium) which he had prescribed for her nervous condition following the death of her son. Plaintiff admitted that she was a high school graduate and could read and write, but asserted that she did not read the releases and signed them under a representation that they were receipts for monies paid to her and her husband to cover the hospital and funeral expenses of her son, and that the drafts were in the exact amount of those expenses.

After a hearing the motion for summary judgment was granted and plaintiff appeals. Held:

1. The releases introduced at the hearing and which plaintiff admitted having signed, are, in form, clearly not mere receipts but are general releases. Southern Bell Tel. & Telg. Co. v. Smith, 129 Ga. 558, 59 S.E. 215; Pennsylvania Cas Co. v. Thompson, 130 Ga. 766, 61 S.E. 829.

2. One who is capable of reading is under a duty to read before signing a contract of release. Jossey v. Georgia Southern & Florida R. Co., 109 Ga. 439, 34 S.E. 664. If he is competent to contract and fails to read before signing, he will be bound by it, absent any artifice, trick or fraud used to prevent his doing so, and absent any fiduciary relationship existing between him and the party procuring his signature to the instrument, Morrison v. Roberts, 195 Ga. 45, 23 S.E.2d 164; Drew v. Lyle, 88 Ga.App. 121, 123, 76 S.E.2d 142; Thomas v. Byrd, 107 Ga.App. 234, 129 S.E.2d 566; Southern Stages v. Fullington, 66 Ga.App. 773, 19 S.E.2d 324.

3. No fiduciary relationship exists between one having a claim against an insured and the agent of a liability carrier who seeks settlement of the claim, and a release obtained by him from a party having a claim for damages is binding, even if the statements and representations made by him relative to liability or nonliability for the damages were incorrect or based upon erroneous reasons, unless he has prevented the claimant from making investigation of his legal rights in the premises. Swofford v. Glaze, 207 Ga. 532, 63 S.E.2d 342; Howard v. Georgia Home Ins. Co., 102 Ga. 137, 29 S.E. 143; Sorrells v. Atlanta Transit System, Inc., 218 Ga. 623(1), 627, 129 S.E.2d 846; Sherwin-Williams Co. v. St. Paul-Mercury Indem. Co., 97 Ga.App. 298, 299, 102 S.E.2d 919; Fields v. Fire & Cas. Ins. Co., 101 Ga.App. 561, 114 S.E.2d 540; Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga.App. 417, 138 S.E.2d 687; Tinsley v. Gullet Gin Co., 21 Ga.App. 512(2), 94 S.E. 892; Walton Guano Co. v. Copelan, 112 Ga. 319, 37 S.E. 411.

4. The releases are unambiguous and parol evidence to vary their terms is inadmissible. Southern Bell Tel. & Telg. Co. v. Smith, 129 Ga. 558, 559, 59 S.E. 215, supra; Clarke v. Fanning, 127 Ga.App. 86(2), 192 S.E.2d 565.

5. Rules as to the admissibility of evidence are applicable in summary judgment proceedings, since the statute provides that all affidavits, depositions, etc. 'shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein.' Code Ann. § 81A-156(e); Standard Oil Co. v. Harris, 120 Ga.App. 768, 775, 172 S.E.2d 344.

6. (a) It appears from the evidence that appellant's son died on April 3, 1972 from injuries received March 30, 1972, and that the claims adjuster, having been called on the telephone by plaintiff's husband and requested to come to the home and discuss the matter of the hospital and funeral expenses, went to the home where he met Mr. and Mrs. Wheat and after discussing the situation with them (largely with Mr. Wheat) agreed to pay the amount of the hospital and funeral expenses, although it was the view of Mr. Montgomery and his insurer that Montgomery had in no manner been at fault and that the accident occurred because of the child's running out into the street. It was then thought that the hospital expenses would be about $700, and that the funeral expenses would be $1536. Drafts for $1,000 to cover the hospital bill (the exact amount not having been obtainable at the time) and for $1,536 to cover the funeral bill were issued to the Wheats April 4, and releases were obtained from them. The drafts were endorsed and used. Later, when the hospital bill was obtained, it exceeded by $608.34 the payment of $1,000 which had been made and on April 17, 1972 an additional draft for $608.34 was delivered to the Wheats and a new release was obtained from them in the total amount of the bill, $1,608.34. This draft was likewise endorsed and used. The releases were general as to any and all claims which the releasors might have arising out of the injury to and death of their son.

These facts show no fraud that would avoid the releases, and no such fraud is pleaded as is required by Code Ann. § 81A-190(b). Consequently, if the plaintiff was competent 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 general releases being jointly signed by her and her husband, and the amount of the drafts made jointly to them equaling the approximate total of the hospital, medical and funeral expenses, the liability for any amount being a disputed matter, see the last paragraph of Walsh v. Campbell, 130 Ga.App. 194, 202 S.E.2d 657, and Caplan v. Caplan, 62 Ga.App. 577, 580, 9 S.E.2d 96. As to whether the compensation may have been inadequate see and compare Hendricks v. W. & A.R. Co., 52 Ga. 467; The Southwestern R. Co. v. Johnson, 60 Ga. 667(2); Porter v. Sou. Ry. Co., 73 Ga.App. 718, 37 S.E.2d 831 and Murray v. Woods, 106 Ga.App. 267(2), 126 S.E.2d 828; Johnson v. Cook, 123 Ga.App. 302(1), 180 S.E.2d 591; Maloy v. Dixon, 127 Ga.App 151, 164, 193 S.E.2d 19. Relative to the effect of the retention and use of the proceeds from the settlement, see Rivers v. Cole Corp., 209 Ga. 406, 73 S.E.2d 196.

7. Plaintiff testified that when she signed the releases she was 'in a state of shock' from the death of her son, 'was on tranquilizers and I just didn't read nothing,' that she signed the releases because her husband asked her to do it, and that she and her husband subsequently got the money on the drafts. In her affidavit she asserts that on the day after her son died, when the adjuster came to her home 'I was under a prescription for tranquilizers from my family doctor, and I had taken a tranquilizer pill shortly before meeting Mr. Cook in our home. I was also grieving and mourning over Michael's loss and was not able to think clearly.' Dr. A. M. Davis certified that he had prescribed Librium, 10 mg., to be taken three times a day to Mrs. Wheat on April 3, 1972, due to emotional problems which she was having at that time.

( a) That the plaintiff was suffering from grief and shock on account of the death of her son, even if proven, would be insufficient to cancel and set aside the releases obtained, particularly that which she signed April 17, a fortnight after the son's death, and which by its terms is a general release. Swofford v. Glaze, 207 Ga. 532, 536, 63 S.E.2d 342, supra. Cf. Hixon v. Georgia Sou. etc. R. Co., 163 Ga. 734, 137 S.E. 260.

( b) Nothing in the record indicates whether she was still taking the tranquilizer when the releases of April 4 or of April 17, 1972 were signed, or what the effect of the drug may have been, or whether at either time it would or did incapacitate her to the extent that she could not make a contract. (In this connection see Atlanta & W.P.R. Co. v. McCord, 54 Ga.App. 811, 816(12),...