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TURNER v. KRAFT.
36564.
Tort; automobile collision, release, etc. Before Judge Heery. Savannah City Court. November 2, 1956.
GARDNER, P.
1. The City Court of Savannah has authority to entertain responsive pleadings in bar of accord and satisfaction.
2. Under the pleadings, the court did not err in ruling that the responsive pleadings in bar of accord and satisfaction were sufficient to submit the determination of the facts to a jury.
Andrew H. Kraft brought suit against Mrs. G. S. Turner and others. The other defendants were stricken leaving only Mrs. Turner as defendant. The petition alleges: that on November 7, 1952, the plaintiff was driving his car on Drayton Street in the City of Savannah and was compelled to stop at Drayton Street and Taylor Street because a long line of automobiles ahead of him had stopped because of a red traffic stop light at Drayton Street and Liberty Street; that the plaintiff's car had been stopped at least 20 or 30 seconds, when all of a sudden, without warning, a car driven by the defendant came up behind the plaintiff and struck the automobile in the rear with great force and violence causing the plaintiff's head and neck to be snapped back violently with great force, injuring the plaintiff painfully and severely and permanently as detailed in the petition. The plaintiff's car, while it was stopped, was in plain view of the defendant. It is alleged that the defendant was grossly careless and negligent in driving her car into the rear of the plaintiff's car when she had sufficient time to stop. It is alleged that the defendant was injured in the amount of $25,000, for which suit was brought. The case was filed in the City Court of Savannah. When the case was called in said court, the defendant filed a plea in bar of accord and satisfaction, showing that a release had been signed by the plaintiff. The release reads as follows: "That I, Andrew H. Kraft, residing at 1131 E. 38th St., Savannah, Georgia, being of lawful age, for the sole consideration of $46 to me in hand paid, receipt whereof is hereby acknowledged, have remised, released, and forever discharged, and for my heirs, executors, administrators, and assigns do hereby remise, release, and forever discharge Grady Turner, and his, her, their, and its successors and assigns, heirs, executors, administrators, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reasons of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting and to result, from a certain accident which happened on or about the 7th day of November, 1953 [1952] for which I have claimed the said Grady Turner to be legally liable, which liability is hereby expressly denied."
The plaintiff, in response to the plea in bar of accord and satisfaction, responded that the release was obtained on account of mutual mistake of the insurance adjuster, Hugh M. Neisler, Jr., and Dr. J. C. Metts, the regular physician of the plaintiff. The response alleged that there was no fraud perpetrated on the defendant but that the release was obtained by mutual mistake as to the seriousness of the injuries which the plaintiff had suffered; that the plaintiff signed the release because of the mutual mistake of his regular physician and the mistake of an insurance adjuster; that the release was prepared by the insurance adjuster on behalf of the defendant, and the release should not be cause for dismissing the plaintiff's suit.
The response reads as follows: "The plaintiff in the above styled cause having instituted a suit for damages against Mrs. G. S. Turner in the above stated court growing out of injuries sustained by the plaintiff on November 7, 1952, wherein it is alleged that the defendant ran carelessly and negligently into the rear of plaintiff's automobile on Drayton Street, and the defendant having filed in said court a plea in bar to the plaintiff's cause of action setting up a release alleged to have been executed by the plaintiff relieving the defendant from any and all liability to the plaintiff growing out of the said injuries sustained by the plaintiff on the 7th day of November, 1952, and the defendant having called for defensive pleadings to the said plea in bar, which plea is to be tried as a separate issue in said proceedings, now comes the said plaintiff in response to the request for defensive pleadings in said case by the defendant, and subject to his motion to dismiss the said plea in bar heretofore filed, and shows and says that the said plea in bar filed by the said defendant, Mrs. G. S. Turner is null and void, and is not binding upon this plaintiff for the following reasons, to wit:
"(1) On the 7th day of November, 1952, plaintiff while driving his automobile north on Drayton Street had been compelled to stop his automobile in Drayton Street at Taylor Street by reason of the fact that the long line of automobiles ahead of him had been stopped by the red traffic light on Drayton and Liberty Streets; that petitioner's automobile while thus stopped was carelessly and negligently run into from the rear by an automobile driven by Mrs. G. S. Turner causing the plaintiff serious, painful and permanent injuries as set out in his original suit against the said Mrs. G. S. Turner which is on file in this court.
"(2) On the date that petitioner was injured as aforesaid he visited Dr. J. C. Metts of Savannah, his regular physician, for diagnosis of petitioner's injuries and for treatment and petitioner continued to visit Dr. Metts for consultation and treatment for the next several months. Upon the occasions of several of petitioner's visits to Dr. Metts and as late as February 1, 1953, Dr. Metts told petitioner that in his (Dr. Metts) opinion petitioner's injuries were relatively mild and that he should recover in a short time. In making this diagnosis of petitioner's injuries and informing petitioner as above set forth, Dr. Metts underestimated the extent of said injuries of petitioner. In the months of March, April, May and June 1953, while petitioner was continuing his visits to Dr. Metts it became apparent to Dr. Metts that petitioner was not recovering from his injuries and was continuing to suffer therefrom. Thereupon Dr. Metts informed petitioner on or about July 1, 1953, that he (Dr. Metts) had underestimated the extent of petitioner's injuries and that he had thus been mistaken in regard to said injuries and in what he had previously told petitioner as to said injuries being relatively mild, and that petitioner would recover in a short time, and on July 6, 1953, referred petitioner to Dr. Thomas P. Waring of Savannah, an orthopedic surgeon, for diagnosis and treatment. After examination by Dr. Waring and X-ray taken he discovered that petitioner was suffering from the following injuries as a result of the automobile collision on the 7th of November, 1952, to wit: The said injuries which said petitioner sustained on the said November 7, 1952, had progressed into a severe nerve root irritation in and about the vertebra in his neck and in and about the foramen between the fifth and sixth vertebra. Upon the advice of his physician, Dr. T. P. Waring, he commenced to wear a head halter traction and Albe collar brace around his neck in order to relieve in a measure the great pain and suffering, nervousness and dizziness in the said depressed reflex of the said foramen. Since he had been under treatment by Dr. Waring and at all times since July 6, 1953, petitioner has suffered pain and discomfort in and about the said region described in and about his foramen between the fifth and sixth vertebra. Since that date and at all times since he has suffered blackouts and headaches. In addition to the foregoing condition in the right foramen between the fifth and sixth vertebra, petitioner's right arm had become affected and he has now little use of the same by reason of the pain and suffering which he endures in endeavoring to use it. By reason of the said injuries, petitioner has been permanently injured and his capacity to labor has been diminished to the extent of fifty (50) percent for the balance of his life.
"(3) That on several occasions after petitioner was injured, Mr. H. N. Neisler, Jr., representing the Travelers Insurance Company, sought petitioner and endeavored to persuade him to settle his claim. Petitioner declined to do so at such time, the exact date petitioner does not remember. Thereafter, on or about February 15, 1953, the said Neisler again sought petitioner without petitioner having requested any interview with him and found petitioner at Kraft's Bakery on Jefferson Street, and told petitioner that the insurance company wanted to settle his claim. Petitioner then and there told the said Neisler that he did not want to make any settlement at that time; but the said Neisler insisted upon petitioner making a settlement, and produced three checks aggregating $45 or $50 to the best of petitioner's recollection, covering payment of the physician's bill, the drug bill, and an auto garage bill, and handed them to petitioner along with an instrument which petitioner read and saw was a release. Petitioner again told the said Neisler that he did not want to settle his claim for that amount or to settle his claim at all at that time, and he did not care to sign the release. Whereupon the said Neisler told petitioner that the said Neisler a few days ago had visited Dr. J. C. Metts, petitioner's physician and had talked with Dr. Metts as to petitioner's injuries, and had obtained a bill from Dr. Metts for the last services, amounting to $10, and that Dr. Metts had told the said Neisler that in his (Dr. Metts) opinion petitioner's injuries were relatively mild, and that petitioner should recover in a short time. Acting upon this statement made to him by the said Neisler and believing that the said Neisler was telling petitioner the truth, petitioner signed the release. At the time that petitioner thus signed said release he was acting under the belief that his injuries then existing were not serious or permanent because of what petitioner had been told by Dr. Metts, and further by reason of what the said Neisler told petitioner that Dr. Metts had said to the said Neisler about petitioner's injuries. Petitioner alleges, however, that both the said Neisler and the said Dr. Metts as well as petitioner were laboring under a mutual mistake as to the seriousness and permanency of petitioner's injuries, and petitioner further shows and says that because of said mutual mistake, said release was signed and executed by petitioner as aforesaid. Petitioner was ignorant of the legal effect of said release, and was likewise ignorant of the medicine and surgery and of the nature and extent of his injuries, and was relying upon the statements of Dr. Metts and the said Neisler at the time he executed said release. By reason of the foregoing facts the said release, copy of which is attached, was and is null and void.
"(4) Upon several occasions since petitioner executed the said release, petitioner has requested the said Neisler to send him a copy of the release, which the said Neisler failed and refused to do, and petitioner only obtained a copy of said release when the defendant in this cause filed a plea in bar to this action and attached thereto a copy of said release. On the 4th day of September, 1954, petitioner through his attorney, Shelby Myrick, tendered to the Blount Insurance Agency, John W. Blount, Jr., and H. N. Neisler, Jr., agents for the Travelers Insurance Company and to the said Mrs. G. S. Turner, for and behalf of whom the said Neisler, agent, was acting at all times, as hereinbefore set out, in endeavoring to make a settlement of petitioner's claim against the said Mrs. G. S. Turner, in the amount of $50, in the form of a certified check of The Liberty National Bank & Trust Company, payable to Blount Insurance Agency, John W. Blount, Jr., and H. N. Neisler, Jr., agents of the Travelers Insurance Company, and Mrs. G. S. Turner.
"A registered letter containing said check, which was acknowledged by the said parties on November 4, 1954, and the said tender was refused by said parties and the said check returned to petitioner and/or his attorneys of record."
The demurrers to the plaintiff's defensive pleadings filed in response to the defendant's plea in bar read: "Now comes Mrs. G. S. Turner, the defendant named in the above-styled cause, and makes and files this her demurrer and motion to dismiss plaintiff's defensive pleadings filed in response to her plea in bar to plaintiff's original suit, and for grounds thereof, shows:
"1. Defendant demurs generally to plaintiff's defensive pleadings purporting to answer defendant's plea in bar and moves to dismiss same in their entirety, on the grounds that same fail to set forth any defense sufficient in law to set aside, rescind or cancel the release executed by plaintiff, upon which defendant's plea in bar is founded.
"2. Defendant demurs generally to the said defensive pleadings filed in response to her plea in bar and moves to strike same in their entirety on the grounds that said pleadings show on their face that the plaintiff released all of his cause of action and claims for damages and injuries arising out of the said accident of November 7, 1952, by executing a final, valid and binding release, which he saw, read and knew to be such a release, and which may not now be set aside or rescinded on the grounds of alleged mutual mistake, plaintiff having failed to show sufficient facts and circumstances for that purpose.
"4. Defendant demurs specially to and moves to strike so much of paragraph 2 of said defensive pleadings and particularly the last five sentences thereof, beginning at the bottom of page 2, with the words, '. . . Upon the advice . . .' and ending on page 3, with the words, '. . . for the balance of his life,' on the grounds that said allegations thereof are immaterial, irrelevant and highly prejudicial, the alleged nature of petitioner's treatment, complaints, disability, pain and suffering and loss of earning capacity having no bearing whatsoever and not being germane to the issue raised by defendant's plea in bar.
"5. Defendant demurs both generally and specially to so much of paragraph 3 of said defensive pleadings, beginning on page 4, with the words, 'Whereupon the said Neisler . . . , and ending with the words, '. . . was and is null and void' and moves to strike all of the allegations thereof on the grounds that they constitute conclusions of the pleader, unsubstantiated by any alleged facts showing sufficient reason for a rescission of said release executed by said plaintiff in said cause, such allegations being insufficient to make out a case for rescission on the grounds of mutual mistake.
"6. Defendant demurs generally to plaintiff's said defensive pleadings filed to her plea in bar on the grounds that this court does not have jurisdiction to reform, rescind, set aside or cancel the release pleaded by the defendant in bar of plaintiff's action for damages for injuries where the relief sought rests upon an alleged mutual mistake of the parties, without fraud.
"Wherefore, defendant prays that these her grounds of demurrer be inquired into."
J. 1. It is contended by counsel for the defendant that the City Court of Savannah was without jurisdiction to try the plea in bar of accord and satisfaction. The act creating the City Court of Savannah, reads in part: "Any defendant in any cause in said City Court may set up equitable defenses, and, if, by reason thereof, it becomes necessary to make other persons parties to the cause, it may be done in the same manner as in the Superior Courts; and it shall be within the power of the said City Court, in a proper cause, to mould the verdict at law so as to do full justice to the parties, and in the same manner as a decree in equity, and the judgment and execution shall conform to the verdict." It is our opinion that the facts in the instant case authorized the City Court of Savannah to entertain the responsive pleadings to the plea in bar of accord and satisfaction. City courts have authority to entertain equitable defenses and the provision of law creating the City Court of Savannah quoted in part herein above specifically granted such authority.
2. We come next to consider whether or not the court erred in denying the motions of both the plaintiff and the defendant regarding the question of mutual mistake. To our minds Bass v. Seaboard Air Line R. Co., 205 Ga. 458 (53 S. E. 2d 895) controls the issue in the instant case. That case was written by our eminent Chief Justice Duckworth. It is an exhaustive treatise on the question now before us. It is a full-bench decision. In this connection we call attention to Tulsa City Lines v. Maims, 107 Fed. 2d 377. It is the opinion of the writer that we might well rest the case here and hold that the trial judge of the City Court of Savannah committed no reversible error. As the case now stands it is for a jury to determine whether or not the defensive pleadings of Kraft, if proven, would support the plea of mutual mistake. We will discuss one other case which is urged by counsel for each party concerning the issue before us. That case is James v. Tarpley, 209 Ga. 421 (73 S. E. 2d 188). The plaintiff contends that the issues in that case are controlling in the instant case. The defendant, on the other hand, contends that they are not applicable under the facts of the instant case. Let it be kept in mind that Chief Justice Duckworth who wrote Bass v. Seaboard Air Line R. Co., supra, was Chief Justice of the Supreme Court when James v. Tarpley, supra, was decided. The Bass case was not mentioned in the James case although the James case was not an unanimous opinion of the Supreme Court, there being a dissenting opinion in the James case by Justice Head. Certainly, the Supreme Court in writing the James case did not overlook the Bass case. In the opinion of the writer, there is a clear distinction between the facts and the principles of law involved in the Bass case and in the James case. The James case involves an instance where the party who signed the release was not misled by anyone but undertook to go ahead and sign a release after which he claimed that he did it on mistake on the part of James. The James case is totally different from the case at bar, as the facts show. That case turned upon what the appellate court said was ignorance of fact, and that is not a lawful excuse. It will be noted also that in the James case affirmative relief was sought in the original petition brought by James to rescind the contract and was in no wise in the nature of a defensive act. This view of the James case must be correct, since the court did not mention the Bass case. It is conclusive to the mind of the writer that the Supreme Court realized that the facts and the law involved in the James case were entirely different from those in the Bass case.
There are numerous decisions called to our attention by counsel for both parties, but in view of what we have stated hereinabove, we see no necessity for calling attention to them.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Myrick & Myrick, contra.
Bouhan, Lawrence, Williams & Levy, Kirk McAlpin, for plaintiff in error.
DECIDED APRIL 2, 1957 -- REHEARING DENIED APRIL 17, 1957.
Saturday May 23 02:08 EDT


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