9 Ga. App. 766 | Ga. Ct. App. | 1911
Mrs. Houser brought suit against the Savannah Electric Company for the homicide of her husband. Among other defenses the electric company pleaded that after Houser’s death, his widow received from the Savannah Electric Benefit Association a certain sum of money and executed a receipt therefor, which operated not only to release the benefit association frbm liability for death benefits, under a fraternal insurance arrangement which was transacted through it, but also to release the electric company from liability for the homicide. The Savannah Electric Benefit Association was a relief association having an intermediate connection between the electric company and its employees, such as frequently exists between other railroad companies and their employees, and such as was discussed in the recent case of Washington v. A. C. L.
The objection, urged by able counsel for the defendant in error, that the benefit association with whom the contract of relief was actually made was not a party to the present case, and that this association was a necessary party to any attack made upon the contract for fraud, is not well taken. If Mrs. Houser had undertaken to set aside the release or to have it cancelled, then the
2. It is contended that the facts set up in the amendment to the petition did not show such a state of fraud as to constitute a defense against the contract of release. It will not be necessary for us to set out the facts relied on. It will be sufficient to say that in our opinion such a state of facts is alleged as to make the question of fraud or no fraud a question for the jury. It is further contended that the petition shows on its face that the offer of restoration which is essential to the rescission of a contract was not seasonably made. The release was signed on June 5, 1909, and tender back of the money which she had received from the relief association was made on January 12, 1910. Under all the facts, we think that it was a jury question as to whether the tender was