Opinion
40693.
DECIDED APRIL 30, 1964. REHEARING DENIED MAY 22, 1964.
Action for damages. Bartow Superior Court. Before Judge Davis.
Hewlett Ward, Florence Hewlett Dendy, for plaintiff in error.
William A. Ingram, contra.
Third parties can not dispose of a chose in action belonging exclusively to another without his consent prior to the disposition or his ratification of the act thereafter. The mere fact that the plaintiff's employer chose to make a settlement with the defendant and obtained a release of all claims purporting to release both the employer and employee, following a motor vehicle collision, will not bar the employee from his own right of action, if any, against the defendant.
DECIDED APRIL 30, 1964 — REHEARING DENIED MAY 22, 1964.
Albert Rowland filed an action for damages against Prince Lewis in the Superior Court of Bartow County, alleging that a Ford dump truck owned by Bartow County and operated by him was involved in a collision with a Chevrolet automobile owned by the defendant and driven by the defendant's wife, and sustained injuries due to the negligence of the defendant's wife in entering an intersection at a speed of 70 miles an hour and colliding with the truck which had already entered the intersection. The defendant filed a cross action for the value of the life of his wife who was killed in the collision and also filed a plea of accord and satisfaction in which it was alleged that the plaintiff, together with Bartow County and its Commissioner of Roads and Revenues entered into a compromise settlement prior to the filing of this action under the terms of which the defendant received $15,000 and in consideration of which he executed a full release of the plaintiff and Bartow County "from any and all claims, demands, actions and causes of action, of any kind whatsoever, which I have or could hereafter have, and particularly on account of the death of my said wife, Erma Helen Thackston Lewis, and all other injuries, known and unknown, both to person and property, which may have resulted or may in the future develop" from the collision. The defendant moved for summary judgment on the ground that the release amounted to a full satisfaction of the causes of action of all parties involved. The plaintiff replied by affidavit in which he stated that he did not enter into any release with the defendant, did not authorize Bartow County or any other person to enter into a release for him or in his behalf, did not authorize his name to be included in the release and did not ratify it. On these facts the trial court entered up summary judgment for the defendant, and plaintiff excepts.
"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. "A release sometimes results as an operation of law; as, when a creditor releases another who is bound jointly with or primarily to the debtor." Code § 20-910. It is frequently stated that a release of one joint tortfeasor releases all. Askew v. Goldsmith, 60 Ga. App. 718 ( 4 S.E.2d 697). Also there may be but one compensation for a single injury, Caplan v. Caplan, 62 Ga. App. 577 ( 9 S.E.2d 96), from which it follows that: (1) Where A is the owner of a motor vehicle driven by (a), and B is the owner of a motor vehicle operated by (b), and injuries and property damage result from a collision of the vehicles due to the negligence of (a) or (b) or both, payment by A of damages to (b) and acceptance from (b) of a release of all claims will preclude A from thereafter suing B on a cause of action growing out of the same transaction. Giles v. Smith, 80 Ga. App. 540 ( 56 S.E.2d 860). This is on the theory that the release purchased by A operated as a satisfaction of all of A's claims as well as those of (b). (2) Where A is the owner and operator of a motor vehicle and A-1 is the owner's insurer under a policy of automobile insurance containing a clause allowing it to make such settlement of any claim or suit as it may deem expedient, the act of A-1 in paying damages and obtaining a release of all claims in favor of itself and A, executed by B, the owner and (b) the operator of the other vehicle involved in the collision will preclude A from thereafter maintaining an action for damages against B or (b). Aetna Cas. c. Co. v. Brooks, 218 Ga. 593 ( 129 S.E.2d 798); Allstate Ins. Co. v. Hill, 218 Ga. 430 ( 128 S.E.2d 321). See also Folsom v. Miller, 102 Ga. App. 232 ( 116 S.E.2d 1). This is on the theory that A, having by contract agreed for A-1 to act as his agent to effect a settlement, is bound by the terms thereof. The act of A-1 in purchasing the release is in law the act of A. None of these cases deals with the effect of a settlement and release as to a third party who is not knowingly a party thereto and who has not authorized or ratified the settlement in such manner as to adopt it as his own act. Such a party might, under the provisions of the above cited Code sections, claim the benefit of the release by acquiescence or ratification; in such event, by making himself a party to the settlement he would be concluded by it. Until he does so the instrument is not a settlement as to him but a mere offer of settlement. "One cannot acquiesce in something of which he has no knowledge." Dixon v. Dixon, 97 Ga. App. 54, 58 ( 102 S.E.2d 74). Nor will mere knowledge, without acquiescence, operate as an estoppel.
The plaintiff's right of action here is in no way derivative from or dependent upon the right of action of Bartow County. Their causes of action are separate and could not have been brought in the same suit. The inclusion of the plaintiff's name in the settlement between Bartow County and the defendant was, so far as appears, a gratuitous act. It gave the plaintiff an opportunity to sell his own lawsuit if he wished for the benefits that might be obtained by him if he chose to adopt the release, but nothing appears in this record to indicate that he ever made such a choice, and he specifically states in his affidavit that he did not. Neither Bartow County nor the defendant had any right to dispose of a chose in action belonging exclusively to the plaintiff without his authorization and consent. Cf. Foremost Dairies v. Campbell Coal Co., 57 Ga. App. 500 ( 196 S.E. 279). It was accordingly error for the trial court to enter up a judgment in favor of the defendants on his motion for summary judgment.
Judgment reversed. Nichols, P. J., and Hall, J., concur.