Opinion
16432.
JANUARY 12, 1949. REHEARING DENIED FEBRUARY 17, 1949.
Martin, Snow Grant, for plaintiff in error.
E. O. Dobbs and Dobbs Whitmire, contra.
Where the father of eleven children was killed by the negligence of a tort-feasor, and the tort-feasor settled with six of the children, such settlement constituted, on the part of the tort-feasor, a waiver of the rule against splitting a cause of action, and, as against the grounds of demurrer urged by the defendant, an action would lie in the other five children for their proportionate part of the value of their father's life.
No. 16432. JANUARY 12, 1949. REHEARING DENIED FEBRUARY 17, 1949.
The Court of Appeals (in Case No. 32134) certified the following questions for decision, as necessary to a proper determination of the case:
"Where the father of eleven children is killed by the negligence of a tort-feasor and the tort-feasor pays to each of six of the children $250 for his interest in the life of the father and takes a complete release from them for such liability, in which transactions those who accepted the money and signed the release were not acting for the other five children who did not, and had no authority to represent them in any such transaction, does an action lie in the five children who did not accept money and sign a release, against the tort-feasor for their proportionate part of the value of their father's life (where said action otherwise alleges a case of actionable negligence, and which alleges the foregoing facts with reference to the receipt of money and signing of a release by six of the children), as against the following demurrers:
"1. `Because said suit cannot be maintained by these plaintiffs for the reason that it affirmatively appears from the allegations of the petition that the plaintiffs constitute only five of the children of the deceased, there being six other children who survived the deceased.'
"2. `Because it affirmatively appears from the allegations of the petition that a settlement has been made with six of the children of the deceased, which settlement completely bars any cause of action by any other children of the deceased.'
"3. `Because there is only one cause of action for the death of the deceased, and the plaintiffs are seeking to split said cause of action and recover for five-elevenths thereof.'"
While the law requires, with certain exceptions, that a plaintiff bring his action for his full claim against the defendant, nevertheless this requirement, being primarily for the benefit of the defendant, may be waived by him, and the same rule applies regardless of whether the action is ex contractu or ex delicto. McDonald v. Tison, 94 Ga. 549 ( 20 S.E. 427); Georgia Ry. Power Co. v. Endsley, 167 Ga. 439 (2), 446 ( 145 S.E. 851); Teat v. Westmoreland, 19 Ga. App. 60 ( 90 S.E. 1025); James v. Emmco Insurance Co., 71 Ga. App. 196, 200 ( 30 S.E.2d 361). See also Code, § 3-601; 1 Am.Jur. 484, § 101; 1 C. J. S. 1306, § 102 (g).
In the early case of Baker v. Jewell, 6 Mass. 460 (4 Am. D. 161), it was said: "Whether this action arises from a contract or from a tort, we consider the law to be well settled, that if one man is legally answerable, in a personal action, to two or more persons jointly, if he will settle and adjust the controversy with either of them, so that he has no longer an interest in the dispute, this is a severance of the cause of action, as to any or all of the parties." In Holland v. Weld, 4 Maine 255, it was held: "Where one, being liable [ex contractu] to two or more in a joint personal action, settles the dispute with one of them so far as that one is concerned, the cause of action is thereby changed from joint to several, and the party becomes liable to each of the others for their separate damages." In Boston and Maine Railroad v. Portland, Saco Portsmouth R. Co., 119 Mass. 498 (20 Am. R. 338), it was held: "Where a person, answerable in contract to two jointly, settles with one of them so that that one has no longer any real interest in the matter in dispute, it is a severance of the cause of action, and the debtor is liable in an action at law to the other alone." It was said in the opinion: "It has long been a settled rule in this Commonwealth, in accordance with the law as understood in England at the time of our Revolution, that when a person, answerable in contract to two jointly, settles with one of them, so that that one has no longer any real interest in the matter in dispute, it is a severance of the cause of action, and the debtor is liable in an action at law to the other alone. Lord Mansfield, in Garret v. Taylor (1764), and Kirkman v. Newstead (1776), 1 Esp. Dig. 117, 1 Chit. Pl. (2d Am. ed.) 7; Austin v. Walsh, 2 Mass. 401, 405; Baker v. Jewell, 6 Mass. 460, 461; Holland v. Weld, 4 Greenl. 255; New Braintree v. Southworth, 4 Gray, 304, 306; Sawyer v. Steele, 4 Wn. C. C. 227, 228." See also Parker v. Elder (30 Tenn.), 11 Humph. 546; Woodbury v. Deloss (N. Y.), 65 Barb. 501; Gock v. Keneda (N. Y.), 29 Barb. 120.
Applying the above legal principles to the facts of the present case — the eleven children originally had a single cause of action under the Code, § 105-1302, for the negligent killing of their father. However, when the defendant company settled the claims of six of the children, it thereby waived the rule against splitting a cause of action. Accordingly, the six children who signed a release were not necessary parties in a suit by the other five since they had no interest in the result of the suit. It follows that an action would lie in the other five children for their proportionate part of the value of their father's life, and the petition was not subject to any of the grounds of demurrer urged by the defendant.
The instant case is distinguished by its facts from Thompson v. Watson, 186 Ga. 396 (2) ( 197 S.E. 774, 117 A.L.R. 484); Bloodworth v. Jones, 191 Ga. 193 ( 11 S.E.2d 658); Happy Valley Farms v. Wilson, 192 Ga. 830 ( 16 S.E.2d 720); Pollard v. Reid, 56 Ga. App. 594 (2) ( 193 S.E. 370), relied upon by counsel for the defendant, in that the defendants in those cases did not, by settlement with any of the claimants, waive the rule against splitting a cause of action.
The foregoing sufficiently answers the questions propounded by the Court of Appeals.
Questions answered. All the Justices concur.