29 Ga. App. 617 | Ga. Ct. App. | 1923
Lead Opinion
Webb Wyatt sued Mackle Construction Company for damages because of personal injuries alleged to have been sustained by the plaintiff as a servant by reason of the' negligence of the defendant as his master. The defendant filed a demurrer upon grounds both general and special. Plaintiff amended his petition sufficiently to meet all grounds of the demurrer which were at that time urged, and the same were properly overruled. No question thus far was involved of sufficient interest to require any statement of the details either of the petition as amended or of the demurrers. But the defendant having now filed an answer in which it pleaded an accord and satisfaction, as evidenced by a writing signed by the plaintiff, a copy of which was set forth in the answer, the plaintiff offered a new amendment, a part of which is as follows: “He (plaintiff) has learned that the defendant sets up by way of accord and satisfaction a certain written document set out by copy as Exhibit f A,’ following paragraph seven of his answer, purporting to have been signed August 6, 1917, by plaintiff and to be in full settlement, accord and satisfaction of his damages. Plaintiff shows that after he was injured by the defendant on July 9, 1917, both the superintendent Garrett and the paymaster A. B. Turner, paymaster, bookkeeper and office man of said defendant, informed plaintiff that his time would go on and that he would receive his pay each week just as if he were able to work; that at the end of each week, under the rules and custom of the defendant company, his pay would come to him as if working. Accordingly, for two or three weeks he did receive just the same amount each pay day as if at work. ■ An estimate was made of how much each man working on the same job received,
"Plaintiff was suffering from his injuries, was strapped from his waist to his neck in strong heavy bandages, his eyes weak from pain and loss of sleep, and it was necessary for him to use two crutches to be able to come to the office of defendant to receive this pay. He had come in about eight miles on a jolting streetcar, had walked on these crutches from the car to the Grant building, and was completely exhausted when he reached the office of the defendant. Plaintiff is uneducated and could read and understand writing only with difficulty when in his normal condition. He was in a condition to be easily imposed upon. While plaintiff was in this condition the said A. B. Turner, in behalf of his principal, the defendant Mackle Construction Company, presented to plaintiff what he said was a receipt for his two weeks’ pay. Plaintiff did not attempt to read the paper, nor could he have read it if he had tried, but, relying upon the said Turner and believing his statement that the paper was simply a receipt for the .two weeks’ pay as wages, plaintiff signed said paper as presented, believing that the same was what A. B. Turner told him it was, a receipt for two weeks’ pay. It now. develops that plaintiff was overreached, deceived, and his condition taken advantage of by the defendant’s agent, Turner, and that said Turner procured from plaintiff what now develops to be a receipt and acquittance for his damages. This paper is absolutely false and untrue. Plaintiff never did receive anything from defendant nor its agents nor from any one else in settlement of his damages. The act of signing
This amendment being allowed, the defendant renewed its original demurrer, and again demurred both generally and specially. One ground of the special demurrer attacks certain items of expense which the plaintiff, in a prior amendment, alleged he had incurred for “board and attention,” first in the home of a Mr. Turner, which he claims to have paid, and secondly in the home of plaintiff’s father, for which plaintiff alleges he is indebted. The demurrer insists in effect that these items are not shown to be chargeable against the defendant. We are of the opinion that this ground of the demurrer should have been sustained. No facts are alleged by which the defendant’s liability for these items is made to appear. It is not sufficiently shown that they were the result of plaintiff’s injury or rendered necessary by it, especially so as to the item for board. This was a living expense, and, whether he was injured or not, he would have had to incur some expense upon this account. It is not shown that such expense for board was rendered larger than would have been necessary had no injury to him occurred. For plaintiff merely to allege that these expenses were incurred “ after this injury ” was not enough to show a cause of action against the defendant therefor.
There was no merit in any of the other grounds of the special demurrer.
By way of amplification of the general demurrer, it is urged therein that the facts alleged in the petition are insufficient to constitute any fraud by the defendant, and that it does not appear that the plaintiff paid or tendered to the defendant the amount received by the plaintiff, as shown in the amendment, before the commencement of the suit.
Here we arrive at the two principal questions of the case, the
On 'the question of tender, there are many cases holding that where an accord and satisfaction is fully executed, the party receiving money from the other can not rescind on the ground of fraud without refunding or offering to refund the money which was the fruit of the accord and satisfaction, and it is held in the case of Western & Atlantic Railroad Co. v. Burke, 97 Ga. 560 (25 S. E. 498), that the plaintiff, who under such circumstances had received from the defendant money which he understood was paid for “ lost time,” could not avoid the plea of accord and satisfaction upon the ground of fraud, without offering to restore the sum so received by him. And in that case it was suggested that his lost time would be an important element in determining his damages if the plaintiff was liable. But it was said also, “It is indisputably clear that damages resulting from personal injuries were the subject-matter to which the settlement related.” In the present case we think that the money which the plaintiff received related to an entirely distinct subject-matter from that of the damages alleged. According to his allegations it was nothing more nor less than a gratuity for which he understood he was merely giving a receipt. The principle of restoration seems to rest upon the idea at least of a contract. Civil Code (1910), § 4305. A mere receipt is not a contract. Pettyjohn v. Liebscher, 92 Ga. 149 (2), 152 (17 S. E. 1007); Crider v. City Supply Co., 16 Ga. App. 377 (85 S. E. 350). If the sum received by him was simply a gift or gratuity, unrelated to the question of damages,— and this we think it was, under the allegations of the petition as
In Devoe v. Best Motor Co., 27 Ga. App. 619 (109 S. E. 689), this court held, though by a divided bench, that the plaintiff, who had received from the defendant a sum of money upon the defendant’s statement that “ we will give you $50 to rest up a few weeks,” was not required to offer a restitution before bringing his suit, in order to avoid a writing which the defendant pleaded as an accord and satisfaction, but which the plaintiff claimed he was led by the fraud of the defendant to believe was only a receipt for the sum of money stated.
In Atlantic Coast Line R. Co. v. Adeeb, 15 Ga. App. 842, 848 (84 S. E. 316), it was said by Judge Wade: “It is contended that a return or tender of the money received by the plaintiff in consideration of the execution of the release was necessary before bringing the action. The evidence as a whole authorized the inference, evidently drawn by the jury, that the money paid to the plaintiff, if accepted by her at all, was not accepted on account of the injuries which she suffered, and that when she signed the release offered in evidence by the defendant to support its special plea of settlement, she did not enter into the particular contract therein set out, and did not intend to make, and did not actually make, a contract of any kind whatsoever with the defendant, but simply signed her name to a blank release, afterwards filled out, without knowledge on her part that it was a release, or a contract by which she undertook to do or refrain from doing anything whatsoever on account of her injuries.” See also G. S. & F. Ry. Co. v. Adeeb, 15 Ga. App. 831 (2) (84 S. E. 323).
The principles laid down by Mr. Chief Justice Bleckley in Butler v. Richmond & Danville R. Co., 88 Ga. 594 (15 S. E. 668), are. quite pertinent to the questions here involved, and we quote therefrom as follows: “ It is quite true that if the plaintiff had made any settlement or entered into any accord touching the injury complained of in his declaration, and now sought to open the same
While in the instant case the money was not received as wages actually due as in the Butler case, neither was it a payment for “ lost time ” as in the Burke case. It was simply a gratuity, for which nothing was exacted of the plaintiff, either as a promise to do or to refrain from doing anything, or otherwise. See also Dannelly v. Guthbert Oil Co., supra.
It is therefore our conclusion that there was no error in overruling any of the demurrers, either general or special, except that • ground of the special demurrer which is referred to in the second headnote; and solely for this error the judgment is reversed.
Judgment reversed.
Rehearing
The eases relied upon in the motion for a rehearing have no application, to a state of facts like those which are pleaded by the plaintiff in the case at bar. While the plaintiff alleged that he made no attempt to read the paper, he further averred he would have been unable to do so had he tried, and facts are pleaded supporting this conclusion. The petition was not subject to demurrer for showing that he made no effort to read, since it appears from the other averments that such attempt, if made, would have been ineffective and altogether useless.
With reference to “wages,” it is distinctly disclosed that no wages were due, and while this term was applied, it was only a name for a gratuity. The sum was not paid for back time or lost time, but (considering the allegations as true) it was tendered and accepted under the defendant’s representations that it was only in the nature of a gift, though not so called. It had no relation to the plaintiff’s claim for damages — constituted no “ element ” thereof (as in Western & Atlantic Railroad Co. v. Burke, 97 Ga. 560, 25 S. E. 498), but was an entirely separate and distinct matter. It was' neither paid nor received on account of any liability whatsoever by the defendant to the plaintiff. It follows that if the plaintiff was led to accept the money by the fraud of the defendant and under the circumstances alleged, his action may be maintained without a restitution. If he fails to establish by proof the averments made, questions would arise, of course, which are not now in the case!
These statements are made, of course, under the rule that upon demurrer the averments of the petition are to be taken as true.
Rehearing denied.
