90 S.E.2d 683 | Ga. Ct. App. | 1955
REESE
v.
BROWN et al.
Court of Appeals of Georgia.
Casey Thigpen, for plaintiff in error.
D. E. McMaster, McMillan, Dukes & McMillan, contra.
FELTON, C. J.
1. Where the plaintiff has closed his evidence and has failed to make out a prima facie case and the defendant submits no evidence and does not close his case, a nonsuit and not a directed verdict is proper. McCaskey Cash Register Co. v. Bank of Villa Rica, 58 Ga. App. 676 (3) (199 S. E. 828).
2. The action was for damages arising out of a collision between a vehicle owned by the plaintiff and a vehicle owned by the defendant father and operated by the defendant son. The plaintiff testified in part: "Several days after the accident I had a meeting with Mr. Barnie Brown, the owner of the truck and the father of Mr. Freddie Brown, and we talked about a settlement. He suggested that I pay for having my own car repaired and he would pay for having his truck repaired and the whole matter would be dropped. . . I thought it best to settle and drop the matter, so we settled the matter between us. It cost me $100 out of my pocket to have my car repaired. I had a $100 deductible policy and my insurance company paid the difference for having my car repaired. The total cost was $490.33. I am not out of anything, except the $100. At [the] time I settled the matter I had forgotten about my car being insured. . . I am sorry that I settled the matter, but I just didn't think." This evidence is conclusive that the plaintiff and the defendant father had settled all matters concerning the collision. "Where each of two persons relinquishes a claim against the other . . . a mutual accord and satisfaction is effected, regardless of the respective amounts involved, and this bars any further recourse on the part of either as to such claims." Collier v. Casey, 59 Ga. App. 627 (1) (1 S. E. 2d 776). See also 1 C. J. S. 492, § 23. The settlement included any claim of the plaintiff against the defendant son arising out of the collision. Donaldson v. Carmichael, 102 Ga. 40 (29 S. E. 135). The plaintiff failed to make out a case against the defendants. The judgment is affirmed, with direction that the verdict and judgment be set aside and a judgment of nonsuit entered in lieu thereof, and that the defendant in error pay the costs of prosecuting the writ of error. See McCaskey Cash Register Co. v. Bank of Villa Rica, supra (3).
Judgment affirmed with direction. Quillian and Nichols, JJ., concur.