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Lawskills.com Georgia Caselaw
CREAMER v. SMITH.
63017.
CARLEY, Judge.
Action for damages. DeKalb Superior Court. Before Judge Federal.
A collision between appellant's and appellee's automobiles occurred on July 12, 1980. Apparently several subsequent discussions and exchanges of correspondence between appellee and appellant's counsel took place regarding the property damage appellant had incurred in the collision. The subject of appellant's claim for personal injury damages arising from the collision was never specifically addressed. In the last week of August 1980, appellee phoned appellant and "inquired about the property damage to [her] automobile." In that conversation appellee "advised that he was going to send [appellant] a check for the damages to [her] automobile." In September appellant received a check from appellee in the mail which contained the following typed release language: "Endorsement and Payment constitutes a release for damages for car accident July 12, 1980." Appellant endorsed the check below the above quoted language and cashed it without conferring with her counsel, believing "the release was for the property damage."
On October 24, 1980, appellant filed suit against appellee seeking a recovery of damages as a result of personal injuries sustained in the collision. Appellee raised the release as a defense to the action and subsequently moved for summary judgment on that ground. The trial court found that appellant "generally released [appellee] from any and all alleged claims and liability arising out of the automobile accident between the parties on July 12, 1980" and granted the motion for summary judgment. It is from this order that appellant brings the instant appeal.
Appellee asserts that the release he secured by appellant's endorsement on the check constitutes a "general release" and that, there being no artifice, trick, or fraud preventing appellant from reading it, the release is binding on appellant and precludes her suit for personal injuries. See generally Quinn v. Samples, 156 Ga. App. 168 (274 SE2d 141) (1980).
A general release is "one that releases the alleged tortfeasor from liability for all claims arising out of an occurrence, [and] in the absence of fraud such release will bar any cause of action by the person executing such release. [Cit.] Yet . . . , a release that by its terms relates solely to designated property damage and does not include a complete release may be executed and will be enforced according to its terms." (Emphasis supplied.) Glover v. Southern Bell Tel. &c. Co., 229 Ga. 874, 875 (1) (195 SE2d 11) (1972). Although appellant in the instant case apparently suffered both personal injury and property damages in the collision, the "release" obtained by appellee was not " 'from any and all actions, causes of action, damages or demands of whatever name or nature in any manner arising . . .' " Bennett v. Dove, 93 Ga. App. 57 (4) (90 SE2d 601) (1955). Neither, by its terms, did the "release" refer to "all damages" appellant suffered in the collision. Compare Townsend v. Lewis, 122 Ga. App. 135 (176 SE2d 457) (1970). Nor did the "release" go to appellee's " 'further obligation' " to appellant ( Mullinax v. Shaw, 143 Ga. App. 657 (239 SE2d 547) (1977)) or evidence " 'a full release of all claims.' " Garrett v. Heisler, 149 Ga. App. 240, 241 (253 SE2d 863) (1979); Riker v. McKneely, 153 Ga. App. 773 (266 SE2d 553) (1980). See also Daniel v. Conrad, 242 Ga. 119 (249 SE2d 603) (1978); Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58 (239 SE2d 381) (1977).
John F. Pendergast, Jr., for appellee.
Gilbert H. Deitch, Gerald B. Kline, for appellant.
DECIDED FEBRUARY 17, 1982.
Thursday May 21 21:04 EDT


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