Opinion
34935.
DECIDED JANUARY 20, 1954. REHEARING DENIED FEBRUARY 3, 1954.
Damages. Before Judge Taylor. Carrollton City Court. September 15, 1953.
Holderness Word, for plaintiff in error.
Boykin Boykin, James F. McNamara, contra.
In order to maintain a suit for the use of another, there must be a legal right of action in favor of the party bringing the suit and against the party who is sued and from whom recovery is sought.
DECIDED JANUARY 20, 1954 — REHEARING DENIED FEBRUARY 3, 1954.
Joseph W. King (hereinafter called the plaintiff), brought suit in the City Court of Carrollton against Golie Prince (hereinafter called the defendant), to recover damages of $408.86, arising out of an alleged collision between his car and that of defendant. It appeared that the collision took place at an intersection of a dirt road on which the defendant was traveling, with a paved State highway on which the plaintiff was traveling, and that the car of the plaintiff was struck on the left side. The plaintiff contended that the defendant was negligent in the operation of his car. The defendant denied liability and also set up that any damage sustained by the plaintiff was caused by his own lack of ordinary care.
The defendant further set up that the damages incurred by the plaintiff had been fully paid, that he had settled in full therefor, that there was a complete accord and satisfaction, and that the plaintiff was not entitled to proceed against him in this action. The defendant further amended his answer and alleged that the accord and satisfaction was had on December 13, 1952, by his payment of $50 to the plaintiff in full settlement.
The plaintiff amended his petition and amplified the grounds of negligence and itemized the alleged damages sustained by him. He set up that the market value of his automobile just before the collision on July 5, 1952 was $1,500, and that immediately thereafter, and as a result of the defendant striking the plaintiff's car, the same was worth $1,103.50, and that he was deprived of the use of his car for seven days and thereby damaged in the additional amount of $14. The plaintiff sought to recover of the defendant $394.86 and $14.00, as elements of his damage.
The plaintiff set up that, of the amount of $394.86 damages, Emmco Insurance Company paid $344.86 for and on his behalf, prior to December 13, 1952, and said insurance company was entitled to be subrogated pro tanto to the plaintiff's right against the defendant, the wrongdoer, as a matter of law; that, with full knowledge that the insurance company had paid $344.86 on the repair bill, the defendant on December 13, 1952, paid him $50 to compensate him for the difference in the amount of the repair bill of $394.86 and the amount paid by the insurance company, $344.86; that the $50 was paid to the plaintiff by the defendant and accepted by him with the understanding that it was voluntarily made by the defendant and accepted by the plaintiff for that part of the repair bill not paid by the insurance company and was in no way to affect Emmco Insurance Company's cause of action against the defendant, or to defeat the insurance company's rights of subrogation, or to split the cause of action against the defendant; and that the plaintiff is entitled to have the right amount of damages determined by the jury under his cause of action, which is not divisible; but the plaintiff admits that the defendant is entitled to a finding of partial accord and satisfaction pro tanto to the amount paid, to wit, $50, to be deducted from the total amount of damages assessed by the jury. The plaintiff in this amendment prayed for judgment against the defendant for $408.86.
The defendant filed an answer to this amendment, denying that he was liable to the plaintiff under the facts alleged and as set up in the answer.
The case came on for trial on September 15, 1953, and the plaintiff presented another amendment "instanter" by changing the name and style of the case so that it would thereupon proceed "Joseph W. King for the use of himself and the Emmco Insurance Company." The defendant objected to the allowance of this amendment. Evidence was introduced, and the plaintiff testified that he had been paid in full and that there was no liability on the part of the defendant to him by reason of said accident of November 21, 1952, and the damages to his automobile resulting to him therefrom. He testified that he was insured under Emmco Insurance Company, and filed his claim with it for a total amount of $394.86, and the company paid $344.86. He testified that the defendant then paid him $50. He further testified that the was not paid for the loss of the use of his automobile and the damages of $14 claimed. However, the plaintiff positively testified: "Therefore I have been fully paid and satisfied as to my claim under this accident." The repairman testified that he received a check from Emmco Insurance Company for $344.86 and $50 in cash from the plaintiff when he delivered the automobile to him. There was testimony as to the condition of the crossing and intersection, that there were bushes along the side thereof, and that the defendant drove along said dirt road, in approaching the dangerous crossing, in an unlawful and reckless manner and did not slow down. There was testimony that he stated to the plaintiff immediately following the accident that he would pay to him the damages sustained.
At the conclusion of the evidence, the defendant moved the court that the evidence showed that the plaintiff had no cause of action then existing against the defendant, and that the law is that an action must be brought in the name of the party who has a right of action, and the plaintiff by his own testimony has no right of action against the defendant and cannot bring the action, and he cannot sustain the same by amending the petition to sue for another party, and that a plaintiff who has no right of action himself cannot recover for the benefit of another. The defendant moved that the amendment be disallowed, as the plaintiff had no right to bring suit for the use of Emmco Insurance Company, he having no right of action at the time himself. The trial judge sustained this motion and disallowed the amendment, to which exceptions pendente lite were filed by the plaintiff, and error is now assigned thereon in this bill of exceptions. Thereafter the trial court directed the jury to return a verdict in favor of the defendant, and to this judgment the plaintiff excepted directly to this court.
"If the tort complained of does not amount to a crime, the person injured may consent to a satisfaction and settlement thereof." Code § 105-1901. "An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money." Code § 20-1204. The defendant here paid the money. The plaintiff testified, "I have been fully paid and satisfied as to my claim under this accident." The facts here show a complete accord and satisfaction fully performed by the payment and acceptance of the money. This case is not at all like Campbell Coal Co. v. Pano, 51 Ga. App. 232 ( 180 S.E. 139), where the agreement was not executed. There the "plaintiff paid for the repairs to his automobile, and refused to sign the release to the defendant." The court said (at p. 234) that nothing less than "actual performance or payment, meaning performance or payment accepted, will suffice," citing Long v. Scanlon, 105 Ga. 424 ( 31 S.E. 436); Brunswick c. R. Co. v. Clem, 80 Ga. 534 ( 7 S.E. 34); Troutman v. Lucas, 63 Ga. 466; 1 C. J. 533, § 20. Therefore it follows that the plaintiff had no cause of action or right of action existing against the defendant at the time he filed the original petition and at the time he amended same and on September 15, 1953, when he sought to have the suit proceed in his name for the use of himself and Emmco Insurance Company.
As a general rule an action for a tort must be brought in the name of the person whose legal right has been affected by its commission. See Code § 3-109. Also, no amendment adding a new and distinct cause of action or new and distinct parties shall be allowed unless expressly provided for by law. Code § 81-1303. According to the undisputed testimony of the plaintiff himself, he had no right of action against the defendant at the time the suit was brought. "Although a plaintiff having a right of action against another may sue for the use of any person whom he may designate to take the proceeds of the action, a plaintiff having no right of action at all cannot recover either for his own benefit or for the use of anyone else." Terrell v. Stevenson, 97 Ga. 570 ( 25 S.E. 352); Tyler v. National Life c. Ins. Co., 48 Ga. App. 338 ( 172 S.E. 747), and cit. See also Franklin v. Mobley, 73 Ga. App. 245 ( 36 S.E.2d 173); National Ben Franklin Fire Ins. Co. v. McGann, 170 Ga. 573 ( 153 S.E. 362) and citations. In the latter case it was held: "It does not convert such fatally defective petition into a good cause of action if such plaintiff bring the suit `for the use' of another. To maintain a suit for the use of another, there must be a legal right of action in the party bringing the suit." See Browder v. Cox, 83 Ga. App. 738 ( 64 S.E.2d 460) and cit.
The fact that the plaintiff sued for an additional $14 for loss of use of his car does not render the present case maintainable. He testified positively that he had been paid in full for all damages resulting to him from this accident.
It follows that the trial court correctly disallowed the proffered amendment, wherein the plaintiff sought to proceed "for the use of himself and the Emmco Insurance Company," and in thereafter directing a verdict for the defendant.
Judgment affirmed. Townsend and Carlisle, JJ., concur.