Simpson v. Plyler, 449

• Decision Date: 11 January 1963
• Docket Number: No. 449,449
• Parties: Spencer Alexander SIMPSON, Jr. v. Mary C. (Crenshaw) PLYLER, Administratrix of Furman Lee Crenshaw, Jr., Deceased, and Charlotte Florist Supply Company.
• Court: North Carolina Supreme Court

Page 843

128 S.E.2d 843

258 N.C. 390

Spencer Alexander SIMPSON, Jr. v. Mary C. (Crenshaw) PLYLER, Administratrix of Furman Lee

Crenshaw, Jr., Deceased, and Charlotte Florist

Supply Company.

No. 449

Supreme Court of North Carolina.

Jan. 11, 1963

Wilson & Clark, Monroe, for plaintiff-appellant.

Richardson & Dawkins, Monroe, for appellees.

MOORE, Justice.

Plaintiff was injured by the alleged concurrent negligence of Furman Lee Crenshaw, Jr., and Charlotte Florist Supply Company (corporate defendant). About 7:45 P.M. on 20 October 1957 plaintiff was a passenger in an automobile owned and being operated by Crenshaw. Corporate defendant's truck collided with the rear of Crenshaw's automobile. The accident occurred on U. S. Highway 601 in Union County. Crenshaw was fatally injured. Plaintiff instituted this action against corporate defendant and the administratrix of Crenshaw (administratrix).

On 10 May 1961, after issues were joined and the case transferred to the civil issues docket, plaintiff and his wife entered into an 'Agreement and covenant not to sue and to indemnify and hold harmless' defendant administratrix. The agreement recites that plaintiff 'desires to settle and adjust any claim which he * * * might have against * * * administratrix * * * by reason of said injuries * * * and further to execute a consent judgment as to * * * administratrix * * * so as to avoid any suit or other legal action. ' In consideration of $3500 plaintiff and wife agreed and covenanted with administratrix not to 'further prosecute any suit now pending in the Superior Court of Union County * * * against * * * administratrix and * * * that a consent judgment may be entered in the action now pending * * * insofar as said action affects or concerns * * * administratrix * * * and (decedent's) estate, and not to re-institute said suit or prosecute any other suit against said estate * * * by reason of the injuries (of plaintiff). ' The agreement also states: 'It is understood and agreed that this agreement is only an agreement and covenant not to sue and is not a release of any claim or cause of action' against corporate defendant, 'and it is expressly understood and agreed that this agreement is in no way to affect the liability, if any, of' corporate defendant 'and all rights, causes of action and remedies against * * * (corporate defendant) are expressly reserved. ' The agreement declares that the sum paid as consideration for the agreement is neither paid nor accepted as a satisfaction of the injuries sustained, and the payment is not intended as an admission of liability on the part of administratrix. Plaintiff and wife also agreed to 'indemnity and save harmless' administratrix and her insurer 'against any and all liability, loss, damages, cost and expenses which the said * * * administratrix (and insurer), or either of them, may hereafter suffer, incur, be put to, pay, or lay out to the undersigned or either of them, by reason of, or having as their origin, claims for personal injuries, or property damage, or claims of any kind or nature whatsoever arising out of said injuries or damages, or either of them, sustained by * * * (plaintiff and wife), or either of them,' in the accident.

On 10 May 1961 Preyer, J., signed a judgment at term which was entered by consent of plaintiff and wife and administratrix. The judgment recites that the consenting parties 'have entered into an agreement and covenant not to sue * * * (and) not to further sue or prosecute this cause of action against * * * (administratrix) upon payment' of $3500. The judgment decrees 'that the cause of action by plaintiff against * * * administratrix * * * shall be terminated upon payment by * * * administratrix, of the sum of * * * $3500 * * * (and) cost of this action * * * and the plaintiff shall forever be barred from prosecuting this cause against * * * administratrix * * *.'

On the same date plaintiff and wife, administratrix and their attorneys signed a 'Satisfaction of Judgment,' stating: '* * * (I)n consideration of the sum of * * * $3500 * * *, the receipt of which is hereby acknowledged, the plaintiff acknowledges any judgment against * * * administratrix * * * paid and satisfied in full. ' The Clerk was authorized to satisfy the judgment of record. The instrument then purports to reserve plaintiff's cause of action as against corporate defendant.

Thereafter corporate defendant filed a motion in writing, alleging that the agreement, judgment and satisfaction of judgment constitutes a release, and praying that the action be dismissed as of nonsuit. At the August 1961 term the motion was denied, but corporate defendant was permitted to amend its answer to allege release.

The cause came on for trial at the November 1961 term before Gwyn, J., and a jury. The jury found that the transactions in question constitute a covenant not to sue, answered all issues in favor of plaintiff and awarded $12,500 in damages. In his discretion the judge set the verdict aside in toto and ordered a new trial.

At the March 1962 term Gambill, J., found facts and concluded that the agreement, judgment and satisfaction of judgment constitute in fact and in law 'a release, satisfaction and accord of plaintiff with one of two alleged joint tort-feasors. ' The action was dismissed and plaintiff appeals.

The main question for determination on this appeal is whether the transactions in question constitute in law a release so as to bar the prosecution of the action against corporate defendant.

When a person is injured by the negligence of joint tort-feasors, he may elect to sue either of them severally or all of them together. Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833. In law, joint tort-feasors are persons who act together in committing the wrong, or persons who, independently and without concert of action or unity of purpose, commit separate acts which concur as to time and place and unite in proximately causing the injury. Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648. For an injury by joint tort-feasors there is a single cause of action for all damages and there may be only one recovery and satisfaction. Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209; Bell v. Hankins, 249 N.C. 199, 105 S.E.2d 642; Holland v. Southern Public Utilities Co., 208 N.C. 289, 180 S.E.2d 592. The cause of action is single and indivisible. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909; Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822.

A valid release of one joint tort-feasor releases all the joint wrongdoers and is a bar to a suit against any of them for the same injury, for the injured person is entitled to but one satisfaction and the release operates to extinguish the cause of action. MacFarlane v. N. C. Wildlife Resources Com., 244 N.C. 385, 93 S.E.2d 557; King v. Powell, 220 N.C. 511, 17 S. E.2d 659; McInturff v. St. Louis Union Trust Co., 201 N.C. 16, 158 S.E. 547; Howard v. J. H. Harris Plumbing Co., 154 N.C. 224, 70 S.E. 285. But a 'covenant not to sue' given by the injured party to a joint tort-feasor does not release the cause of action, and in such case the action is not barred annd may be maintained against the joint wrongdoers. Ramsey v. Camp, supra; Holland v. Utilities Co., supra; Brown v. Norfolk Southern R. R., 208 N. C. 423, 181 S.E. 279; Slade v. Sherrod, 175 N.C. 346, 95 S.E. 557. The fact that the covenant not to sue is given after the action is instituted does not alter the effect. Ramsey v. Camp, supra; Register v. Andris (1951), 83 Ga.App. 632, 64 S.E.2d 196.

'A release has been defined as the abandonment, relinquishment or giving up of a right or claim to the person against whom it might have been demanded or enforced (Black's Law Dict.; Ballentine's Law Dict.) and its effect is to extinguish the cause of action; hence it may be pleaded as a defense to the action. A covenant not to sue, on the other hand, is not a present abandonment or relinquishment of the right or claim, but merely an agreement not to enforce an existing cause of action. It does not have the effect of extinguishing the cause of action; * * * a covenant not to sue one of several joint tort feasors may not be * * * pleaded [in bar of the action] by the covenantee, who must seek his remedy in an action for breach of the covenant. ' Pellett v. Sonotone Corp., 26 Cal.2d 705, 160 P.2d 783, 160 A.L.R. 863 (1945). See also 45 Am.Jur., Release, §§ 3, 4, 5; 76 C.J.S. Release § 50. As to a sole tort-feasor a covenant not to sue is in effect a release, and where given to a sole tort-feasor or to all joint tort-feasors the courts have permitted covenantees to plead it as a defense, not strictly as a bar but to avoid circuity of action. 45 Am.Jur., Release, § 3.

Joint tort-feasors, not parties to the covenant not to sue, are entitled to have credited on the total recovery against them the amount paid for the covenant by covenatee. Ramsey v. Camp, supra. Where, because of uncertainty and conflict in the terms of the instrument, construction is necessary to determine whether it is a release or a covenant not to sue, the problem is to determine the intention of the parties. In making the determination the court may look to the consideration paid, the effect of the instrument and the circumstances attending the execution. The recitals of the parties are not controlling. Haney v. Cheatham, 8 Wash.2d 310, 111 P.2d 1003 (1941); 76 C.J.S. Release § 50, p. 694. See also 30 N.C.Law Rev. 75. Where the language of the instrument is so comprehensive and inclusive that it amounts to a relinquishment of the injured person's claim and right of action against a joint tort-feasor, or where the instrument expressly provides that it shall be a defense and bar to the former's cause of action against the latter, all of the joint tort-feasors are released. This is true even if the instrument purports to save and reserve the cause of action against the other wrongdoers. Braswell v. Morrow, 195 N.C. 127,...