dissenting in part and concurring in part. Walter *201E. Walsh and Mrs. Aubrey B. Walsh, husband and wife, were involved in an automobile collision with D. J. Campbell. Walter E. Walsh was the owner and driver of the vehicle in which he and his wife were riding (Tr. p. 30). Mrs. Walsh suffered personal injuries as a result of the collision, and Mr. Walsh lost time from work and suffered damages to his automobile. Both items of damages to him amounted to only $107.95. When it was learned that Campbell was not carrying liability insurance, Walsh called on State Farm, his own automobile insurer, under the uninsured motorist provision of his policy. State Farm’s agent advised Walsh that the maximum amount the uninsured motorist provision of the State Farm policy would pay was as to the lost time of Mr. Walsh and damages to his automobile in the total amount of $107.95. Relying upon this statement of State Farm’s agent, Walsh accepted $107.95, and both husband and wife signed a release.
Walter E. Walsh and Mrs. Aubrey B. Walsh filed separate suits against D. J. Campbell, and had copy of the summons and complaint served upon State Farm. State Farm pleaded the release as an accord and satisfaction in each case. Plaintiff in each case contended the release was void and should be set aside. State Farm’s separate motions for summary judgment were granted by the lower court.
The majority opinion affirms the lower court in the grant of summary judgment against Walter E. Walsh in Case No. 48155, and in that case I concur in the judgment only.
The majority opinion also affirms the lower court in the grant of summary judgment against Mrs. Aubrey Walsh in Case No. 48154. As to that judgment I respectfully dissent. The release which husband and wife signed was a nudum pactum and completely without consideration as to Mrs. Walsh. She was paid nothing, whereas Walter Walsh was paid the entire $107.95 as the amount represented by his lost time and necessary repairs to automobile.
A case almost exactly in point is that of Blue Ridge Park Nurseries v. Owens, 41 Ga. App. 98, 99 (6) (152 SE 485). In that case a mother sued to recover for the homicide of her minor children, a right which was vested in her by virtue of Code Ann. § 105-1307. The defendant pleaded as an accord and satisfaction a certain release signed by her for $254.11; $234.11 of this sum was for hospital and medical services and funeral expenses, all of which was a liability of the father oí the deceased child, and none of which was owed by the mother. The remaining $20 was paid directly to *202her husband. During the trial, the mother (plaintiff) contended the release was void, which contention was upheld by the trial court and affirmed by the Court of Appeals. It will be noted that the money was actually paid over to the mother in the Owens case, but it was held that this was no obstacle to the setting aside of the release.
The above case is on all-fours with the case sub judice. The majority opinion attempts to explain away the Owens case, but without success. It asserts that Owens was decided under Code § 53-503 respecting the restrictions on a wife to bind her separate estate for debts of her husband, whereas the statute has been amended since then. To what extent and in what respect has the statute been amended? The new statute is just as binding as was the former one.
But in the case sub judice, the' facts are even stronger than in the Owens case. There the debts of the husband'were involved and the money paid to the wife was in consideration of her husband’s debts. But here, husband Walsh suffered a definite and distinct loss for his own lost time and repairs to his own automobile, and both Walsh and State Farm were in perfect agreement as to the amount, to wit, $107.95, emphasized by the statement of Neff (State Farm’s agent) that the uninsured motorist provision of the policy would not pay for anything except these losses of the husband (the owner of the car). We repeat that the Walsh case is even stronger in support of setting the release aside than was the Owens case.
I am authorized to state that Judge Deen joins in this dissent.