Sircey v. Hans Rees Sons
| Decision Date | 24 May 1911 |
| Citation | 71 S.E. 310,155 N.C. 296 |
| Parties | SIRCEY v. HANS REES SONS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Councill, Judge.
Action by W. R. Sircey against the Hans Rees Sons. From a judgment for defendant, plaintiff appeals. Affirmed.
Where a servant was injured through the joint negligence of the master and a stranger, a valid release given to the master bars an action against the stranger for the injury, under the rule that a release of one tort-feasor discharges the other though the tort of the master grew out of contract.
Fortune & Roberts and Chas. E. Jones, for appellant.
Bourne Parker & Morrison, for appellee.
This action was brought to recover damages for an injury received by plaintiff, who was employed by the Southern Railway Company as a switchman, while moving a car of coal along a side track laid on defendant's premises for its accommodation. The particular allegation is that the plaintiff was required to mount the car while in motion, in order to perform his duties, and that in doing so he was caught between the side of the moving car and a pile of tan bark which had been placed so near the track as to endanger the employés of the railway company when moving cars on the siding. Plaintiff did not know the bark was there at the time he was hurt. He alleges that he was injured by the negligence of the defendant though the facts stated in the complaint are also sufficient to show a case of negligence against the railway company as well, or, in other words, that the injury resulted from the joint negligence of the two companies.
It appears that at February Term, 1909, which was the return term, judgment by default and inquiry was entered, but after an order had been made extending the time to file answers due at that term for 30 days after the final adjournment of the court. The judgment was handed to the judge and signed by him without any notice to defendant or its counsel of the same and the latter relied upon the order of the court extending the time for filing answers, and therefore made no inquiry as to the order, as they were ignorant that one had been made. Defendant's counsel, as soon as they were notified of the judgment, moved to set it aside, upon the ground that the court had no power to make it without notice to defendant; and, secondly, because of excusable neglect. The judge set aside the judgment, and we think very properly. It should not have been applied for or entered without notice. It was competent for the court to have excepted this or any other case from the general order, but, having made a general order, counsel could not be expected to anticipate that it would be violated in this way, or that judgment would be entered without notive to them.
The rendition of the judgment was not even announced in open court, but the judgment was merely delivered to the judge and signed by him. Calling out the defendant, when his counsel did not hear the call, is not sufficient to withdraw the protection of the law from him. Such a thing was not looked for. One of defendant's counsel was in court, but did not know of the judgment, and was not called upon to take notice of it, under the circumstances. If there was any neglect at all, and we think there was not, it was certainly excusable. Branch v. Walker, 92 N.C. 87; Griel v. Vernon, 65 N.C. 76 (); Long v. Cole, 74 N.C. 267; Wynne v. Prairie, 86 N.C. 73; Taylor v. Pope, 106 N.C. 267, 11 S.E. 257, 19 Am. St. Rep. 530; Clark's Code (3d Ed.) § 274, and note, especially page 312 et seq. We are satisfied the judge would not have signed the judgment had he known the facts. The defendant had a meritorious defense, because he defeated the plaintiff in the trial of the case. This is a very fair test of a good defense. Cases cited by plaintiff's counsel are not in point. In all of them the facts were different.
We cannot agree with the learned counsel that the plea of a release is technical, and does not present a meritorious defense. Plaintiff thereby acknowledged full satisfaction of his claim, and he is entitled to have no more. Nor can we assent to the suggestion that a plaintiff should be allowed two satisfactions for one and the same demand. Such a doctrine would shock the moral sense and violate a cardinal maxim of the law, if not the defendant's constitutional right. Plaintiff excepted to the order setting aside the judgment by default, and appealed from the final judgment dismissing the action. We have treated the case as if he had preserved his exception, and it is not necessary to decide whether he should have appealed at once from the order of vacation. At the trial the defendant relied on a release given by the plaintiff to the Southern Railway Company. The execution and validity of the release were admitted, and thereupon the court, on motion of the defendant, dismissed the action and plaintiff appealed.
There was no error in the judgment. With reference to the plaintiff, the defendant and the railway company were joint tort-feasors, and, besides, the evidence shows that they jointly participated in the wrong and were co-delinquents. Even if the tort of the railway company was one growing out of contract for the plaintiff's services, the rule that the release of one tort-feasor will discharge the other will nevertheless apply. Whether the plaintiff had sued in tort, or had waived the tort and sued on the contract, if he could do so, can make no difference. He has received what he regarded as full compensation for his injury, and the law will not give him more than he said was enough, whatever may be the technical form of the action he might have brought against the railway company. Hale on Torts, pp. 195, 196; Eastman v. Grant, 34 Vt. 387.
We have had occasion to consider this rule as to the effect of a release at the present term. Howard v. Plumbing Co., 70 S.E. 285; Gregg v. Wilmington, 70 S.E. 1070. It is true that in the case last cited the release was alleged to have been given by the plaintiff to Wolvin, who as between himself and the city was primarily liable, but in the former case Justice Brown says: "Assuming that this defendant is jointly liable with Ayers to the plaintiff, she has released Ayers for a valuable consideration paid to her by him, and that releases this defendant. She cannot be allowed to recover two compensations for the one injury. If she recovers of one, she cannot recover of the other. It is immaterial, so far as plaintiff is concerned, to consider which joint tort-feasor is primarily liable. The question of primary and secondary liability is for the offending parties to adjust between themselves. The injured party has his remedy against either. Dillon v. Raleigh, 124 N.C. 188, 32 S.E. 548; Buswell on Personal Injuries, § 190. It is well settled that a release of one or more joint tort-feasors, executed in satisfaction for an injury, is a discharge of them all on the ground that the party can have but one satisfaction for his injury. 24 Am. & Eng. Enc. of Law, 306, where cases from nearly all the American courts are collected.
Brown v. Louisburg, 126 N.C. 701, 36 S.E. 166, 78 Am. St. Rep. 677; Burns v. Womble, 131 N.C. 173, 42 S.E. 573." For a general discussion of the liability of tort-feasors, see Raleigh v. Railroad, 129 N.C. 265, 40 S.E. 2, and Lexington v. Indemnity Co., 71 S.E. 214, at this term. Judge Cooley, in his treatise on Torts, relying on many English and American authorities, thus states the rule: ...
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