24 Ga. App. 86 | Ga. Ct. App. | 1919
The plaintiff in this case has had a long and no doubt an anxious fight with those who she claims have by their negligence damaged her. This court in Roy v. Georgia Railroad &c. Co. 17 Ga. App. 34 (86 S. E. 338), gave her hope by determining her suit to be good as against demurrer in so far as several of the defendants were pleaded liable. When her case in due course came on for trial, the defendants amended their defenses and claimed that she had released a joint tort-feasor by entering into the following agreement: “In consideration of the sum of two hundred fifty ($350) dollars, received by me, this 3nd day of Oct., 1913, I hereby release and discharge Empire Cotton Oil Company, Madison, Ga., of and from any and all claims which I now have or may have hereafter, by reason of personal injuries sustained by my son, J. A. Eoy, resulting in his death, on or about the 11th day of Sept., 1913, or of any cause, matter or thing whatsoever. Eelease. Witness my hand and seal. Mrs. A. G. Eoy (L. S.) C. L. C. Thomas, Witness, Madison, Ga. P. B. Speed Jr., Witness, Madison, Ga.” Demurrers to the pleas were overruled, and the plaintiff offered an amendment to the petition, in which amendment she alleged that her agreement and receipt to Empire Cotton Oil Company, while purporting to be a release, was in fact not a release, for the reason that neither she nor the Empire Cotton Oil Company ever regarded the death of her son as due to any negligence of his employer, the Empire Cotton Oil Company, and that the money received by her as evidenced by her written receipt was but a gratuity, and not an effort to release or sell her claim, and at most was only a covenant not to sue; and in the amendment she sought a reformation of the receipt given, so as to make it speak the truth. Demurrers to the amendment were sustained. She then filed a petition in the superior court, praying the aid of equity, to the end that the receipt be reformed, modified, and molded so as to speak the truth and not be such a release as would defeat her remedy against the others she was suing for the tort committed. In the meantime the Empire Cotton Oil Company agreed with her contention, and in lieu of the first writing the
"Whereas on October 2, 1913, Mrs. A. G. Boy, gave to Empire Cotton Oil Co. a paper in words as follows: Tn consideration of two hundred and fifty dollars ($250) received by me this second-day of October, 1913,1 hereby release and discharge Empire Cotton Oil Company, Madison, Ga., of and from any and all claims which I now have or may have hereafter, by reason of personal injuries sustained by my son, J. A. Boy, resulting in his death, on or about the 11th day of September, 1913, or of any matter or thing whatsoever. Witness my hand and seal. Belease. Mrs. A. G. Boy. C. L. C. Thomas, Witness. P. B. Speed Jr., Witness.’ And whereas at said time it was not considered that said Empire Cotton Oil Company was liable to Mrs. A. G. Boy in the premises, nor was it the purpose of either party to appraise her injury or satisfy the same, but it was the purpose of the Empire Cotton Oil Company to pay her said sum in the nature of a gratuity, asking only that she agree not to sue or hold said Empire Cotton Oil Company responsible, and an agreement having the effect of relieving said Empire Cotton Oil Company from any suit by Mrs. Boy, without affecting her right to hold others responsible for her son’s death that might be responsible therefor, was intended by both parties, but by accident and mistake of both parties, as to the legal effect and operation of the words used, the language above quoted was used, which it is now claimed operates to release the persons really responsible, if any persons are responsible: Now in consideration of the premises, and in voluntary reformation of said instrument, to express the true intent of the parties thereto, the same is made to read as follows: “In consideration of two hundred and fifty dollars ($250) received by me this second day of October, 1913, I hereby agree not to sue Empire Cotton Oil Company, Madison, Ga., on account of any or all claims which I may have or may hereafter have against it, by reason of personal injuries sustained by my son, J. A. Boy, resulting in his death on or about Sept. 11, 1913, or any other matter or thing whatsoever; not relieving or releasing any other person who may be liable therefor. Witness our hands and seals this August 8, 1916. Empire Cotton Oil Co., by H. E. Watkins, Vice Pres. (L. S.) Mrs. A. G. Boy. (L. S.) M. E. Keeler, Secty. Empire Cotton Oil Co. [Corporate Seal].”
This branch of her cause then by due course was determined
A covenant not to sue one jointly liable will not serve to release any one other than the one with whom the covenant not to sue is entered into. Where by accident, mistake, or fraud a writing does not speak the truth, it may be reformed and corrected so that it may be made to speak the truth. In this case the defendants may introduce in evidence the original writing as well as such other evidence as may be competent by way of attack on the reformed and alleged corrected covenant not to sue, and it is for the jury to say, under appropriate instructions from the court, whether the plaintiff in fact did release as pleaded by the defendant, or whether she merely entered into a covenant not to sue. Viewing the case as we do, we are of the opinion that it was not error to overrule the demurrers to the defendants’ answer, and that it was error for the court to sustain the demurrer to the plaintiff’s amended petition. In other words, the plaintiff may attack the release pleaded by the defendant, and the defendants may attack the alleged reformed writing by the introduction of the writings themselves, and such other evidence as may be admissible, for the discovery of the truth.
The court having struck the plaintiff’s amendment to her petition, wherein she pleaded the reformation of the original receipt,
Judgment reversed.