American Oil Company v. Studstill., 132 Ga. App. 56, 207 S.E.2d 553 (1974)
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Judgment affirmed. Bell, C. J., and Clark, J., concur.
Summary
Judgment affirmed. Bell, C. J., and Clark, J., concur.
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Billy W. Walker, Smith & Harrington, Will Ed Smith, for appellant.
For a full statement of the background of this appeal, see the former appearance of this case in Studstill v. American Oil Co.,
The trial proceeded and evidence was introduced treating solely with the issue of whether there was an accord and satisfaction of the claim for which suit was brought. The jury returned a verdict against the plea of accord and satisfaction and judgment was entered thereon. The defendant's motion for judgment notwithstanding the verdict and for new trial, as subsequently amended, was overruled. Appeal was taken to this court. Held:
1. Defendant contends that the trial judge erred in refusing to give certain requests to charge.
In American Oil Co. v. Studstill,
The rules set forth by the Supreme Court do not include any requirement that a party return a check which is sent to him in full payment of a debt. It would therefore appear that any non-action on his part would be purely for the jury's consideration and would establish nothing as a matter of law. This is substantiated by the ruling designated No. 2 which requires a party to affirmatively acknowledge that he is retaining the check according to the terms by which it was proffered. With these principles in mind we consider the various requests to charge.
(a) First as to the two requests numbered 4 and 5, it appears from the record that the trial judge charged very thoroughly concerning these issues. Hence, it would not be error to fail to charge in the exact language requested. Hardwick v. Price,
Moreover, the thrust of both charges is that it is necessary to return the check within a reasonable time in order to prevent a settlement from occurring. While a jury might find that because of an unreasonable retention of the check a settlement occurred, there is certainly no affirmative duty on the part of the offeree to return the check. The jury might find that the fact the offeree notified the other party and affirmatively disclaimed any intention to cash the check or to accept the check in settlement would be sufficient. Under the ruling in American Oil Co. v. Studstill,
(b) The request No. 6 contains an infirmity. It uses language that "a refusal by a party to return the check upon request or demand by the person against whom the claim is made amounts to an exercise of dominion over the check." This was preceded by instruction that the exercise of dominion over a check will amount to an acceptance of the check. Again the jury would not be required to find an accord and satisfaction merely because the party refused to return the check if there were other factors which lead them to believe that the offer of accord and satisfaction had been rejected.
(c) Request to charge numbered 7A reads: "The retention of a check sent in settlement of a claim, and declared to be in settlement of the claim held by the person to whom it was sent, coupled with a failure in a reasonable time to decline the proposition and return the check will raise a conclusive presumption of an acceptance of the terms and conditions set forth on the check." Again following the principles of American Oil Co. v. Studstill,
(d) The last request to charge (7B) assigned as error in defining a reasonable time states the plaintiff "must have acted in declining the defendant's offer of settlement and returning the check of the insurance company (he must have done both)." This places upon the plaintiff a requirement, as a matter of law, which does not exist.
While we recognize the language contained in several of the requests was taken from decisions by this court and the Supreme Court, the Supreme Court in American Oil Co. v. Studstill,
It was not error to refuse to give the written requests.
2. The charge as given was not confusing or misleading and was not otherwise subject to the attack made upon it. It was not error to refuse to charge the defendant's written requests as to the form of the verdict.
3. We now consider the question with regard to the failure to disqualify three prospective jurors. As to the first juror, the defendant contends that on voir dire her testimony showed a prejudice against truck drivers. Assuming but not deciding this to be true, the trial of the case in no way involves the truck driver and was solely between the insurance company and the individual claimant. All the issues were with regard to whether a settlement took place between agents of the defendant and the plaintiff. That being true the prejudice purportedly demonstrated by the juror would not be relevant to this case. Hence, it would not be a ground for disqualification.
As to the other jurors, while each of them made statements which might raise some questions as to their qualifications, each stated that he would decide the case on the evidence and that he would vote his convictions. Thus, the trial judge did not abuse his discretion in denying the defendant's motion to disqualify the jurors. See Williams v. State,
The principal cases cited by the appellant in this regard are distinguishable. In Bowers v. State,
4. The evidence offered, while conflicting, was sufficient to sustain the verdict rendered.
Rembert C. Cravey, for appellee.
1974
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