Holland v. Southern Public Utilities Co., Inc.

• Citation: 180 S.E. 592,208 N.C. 289
• Decision Date: 26 June 1935
• Docket Number: 526.
• Parties: HOLLAND v. SOUTHERN PUBLIC UTILITIES CO., Inc., et al.
• Court: United States State Supreme Court of North Carolina

180 S.E. 592

208 N.C. 289

HOLLAND v. SOUTHERN PUBLIC UTILITIES CO., Inc., et al.

No. 526.

Supreme Court of North Carolina

June 26, 1935

Appeal from Superior Court, Mecklenburg County; Hill, Special Judge.

Action by Dr. R. F. Holland against the Southern Public Utilities Company, Inc., and O. O. Keesler. From a judgment for plaintiff, defendants appeal.

New trial.

Amount paid to injured person by any party, regardless whether joint tort-feasor or otherwise for and on account of such injury or damage, should be held a credit on total recovery in any action for same injury or damage.

Where single injury was inflicted by joint tort-feasors, there can be but one recovery therefor, and settlement with one tort-feasor releases all other tort-feasors.

This is a civil action instituted by the plaintiff to recover damages for personal injuries resulting from a collision between a street car and a truck alleged to have been proximately caused by the negligence of the defendants in the operation of the street car owned by the corporate defendant and driven by the individual defendant on West First street between Church and Mint streets in the city of Charlotte, Mecklenburg county, N. C., on the 18th day of September, 1933. The defendants deny that the plaintiff's injuries were caused by any negligence on their part, and, as a further defense aver that such injuries were the result of a collision between a truck of the Southeastern Express Company and the street car of the defendants at the time and place alleged in the complaint, and that said collision was proximately caused by the negligence of said express company; and further aver that "prior to the institution of this action the plaintiff made claim against the Southeastern Express Company for the injuries sustained by him and said company settled with the plaintiff and paid him in full for said injuries."

The plaintiff admitted, in the course of his examination as witness in his own behalf, that on the 9th day of December 1933, and prior to the institution of this action, he executed and delivered to the Southeastern Express Company an instrument in the following language:

"Know All Men By These Presents: That I, R. F. Holland, of Charlotte, Mecklenburg County, North Carolina, for myself my heirs, executors, administrators, successors and assigns, for and in consideration of the sum of Five Hundred and No/100 dollars to me paid, the receipt of which is hereby acknowledged, by this instrument agree to forever refrain from instituting, procuring or in any way aiding any suit, cause of action, or claims against the Southeastern Express Company and all persons, firms and/or corporations for whose acts or to whom said party or parties might be liable, for damages, costs or expenses growing out of an accident occurring on or about the 18th day of September, 1933, on West First Street, between Church and Mint Streets in the City of Charlotte, Mecklenburg County, North Carolina, and to save harmless and indemnify the parties aforesaid from all loss and/or expense resulting from any such suit, cause of action or claim.

Expressly reserving to the undersigned, however, all rights to proceed against any person or persons other than the parties aforesaid for all loss and/or expense arising out of said accident."

The plaintiff further admitted that he received $500 from the Southeastern Express Company upon delivery of this instrument.

Issues were submitted to the jury and answered as follows:

"1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint? Answer: Yes.

2. If so, did the Southeastern Express Company by its negligence, jointly and concurrently, contribute to plaintiff's injuries, as alleged in the answer? Answer: No.

3. Did the plaintiff covenant to refrain from suing the said express company, or any person to whom it would be liable, on account of the collision as set forth in the complaint, and as alleged in the answer? Answer: Yes.

4. What damage, if any, has the plaintiff sustained on account of his alleged injuries? Answer: $500.00."

From a judgment that the plaintiff have and recover of them $500.00, the defendants appealed to the Supreme Court, assigning errors.

W. S. O'B. Robinson, Jr., W. B. McGuire, Jr., and John S. Cansler, all of Charlotte, for appellants.

Enos T. Edwards and H. L. Taylor, both of Charlotte, for appellee.

SCHENCK Justice.

The record discloses that the defendants in apt time and in due form requested the court to charge the...