Kendrick v. Cain, 614
Decision Date | 02 February 1968 |
Docket Number | No. 614,614 |
Parties | Odis Fletcher KENDRICK, Administrator of the Estate of Jimmy Ray Kendrick v. Glenn Winfred CAIN and George E. Haddock. |
Court | North Carolina Supreme Court |
John Randolph Ingram, Asheboro, for plaintiff-appellant.
Jordan, Wright, Henson & Nichols, Greensboro, for defendants-appellees.
Plaintiff's action is brought under the wrongful death statute, G.S. § 28--173, et seq., against defendants as joint tort-feasors.
Appellee Cain contends that plaintiff can have only one recovery and that when plaintiff accepted the full amount of the judgment entered against defendant Haddock, plaintiff's appeal became moot. The statute (G.S. § 28--173 et seq.) contemplates only one cause of action, and when the action is brought by the personal representative, the judgment is conclusive on other persons, and the right given by the statute is exhausted. 16 Am.Jur., Death, § 161, p. 103.
Clearly, the statute contemplates that if plaintiff be entitled to recover at all, he is entitled to recover as damages one compensation in a lump sum. Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421; Bell v. Hankins, 249 N.C. 199, 105 S.E.2d 642. He is not entitled to recover the whole sum from each of the joint tort-feasors. Watson v. Hilton, 203 N.C. 574, 166 S.E. 589.
Although a covenant not to sue, procured by one tort-feasor, does not release the other from liability, Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209, 94 A.L.R.2d 348, it is a well settled doctrine of the law that a release of one joint tort- feasor ordinarily releases them all. MacFarlane v. Wildlife Resources Comm., 244 N.C. 385, 93 S.E.2d 557; King v. Powell, 220 N.C. 511, 17 S.E.2d 659.
In the case of Sircey v. Rees' Sons, 155 N.C. 296, 71 S.E. 310, plaintiff, employee of Southern Railway Company, was injured when employer's train was being backed onto defendant's siding. Plaintiff alleged defendant was negligent in placing tan bark so near the track as to cause his injury. The complaint stated facts sufficient to show joint negligence of defendant and the railway company. At the trial, defendant relied on a release given by plaintiff to Southern Railway Company. The trial court dismissed the action. Affirming the decision of the trial court, this Court quoted with approval from Cooley, J., on Torts as follows:
* * *'
Further, as a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist. Cochran v. Rowe, 225 N.C. 645, 36 S.E.2d 75; In re Estate of Thomas, 243 N.C. 783, 92 S.E.2d 201; Simmons v. Simmons, 223 N.C. 841, 28 S.E.2d 489.
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