Slade v. Sherrod

• Citation: 95 S.E. 557,175 N.C. 346
• Decision Date: 10 April 1918
• Docket Number: 355.
• Parties: SLADE v. SHERROD ET AL.
• Court: United States State Supreme Court of North Carolina

95 S.E. 557

175 N.C. 346

SLADE v. SHERROD ET AL.

No. 355.

Supreme Court of North Carolina

April 10, 1918

Appeal from Superior Court, Rockingham County; Harding, Judge.

Action by West Slade against W. J. Sherrod and others. From a judgment against plaintiff, he appeals. Reversed, and judgment entered for plaintiff.

Brown and Walker, JJ., dissenting.

Release to passenger in motor-car given by plaintiff, whose horse and buggy were injured in collision with such car, and who was assaulted by the passenger, held not to release motor company which owned car and its president from liability to plaintiff for injuries to horse and buggy.

The plaintiff, a colored man, brings this action against the defendant Sherrod, the owner of an automobile, and the automobile company of which he is president, to recover damages for the loss of his horse and injury to himself and his buggy, alleged to have been caused in the operation of an automobile owned by the defendant Sherrod and operated by his servant. The plaintiff brought a former action against James N. Williamson, Jr., in which this defendant was named as codefendant in the summons, but the complaint was filed against Williamson only, in which there were two causes of action alleged, one for this injury, and a second cause of action for an assault and battery committed on the plaintiff by said Williamson, who was a passenger in the machine, to prevent the plaintiff from ascertaining the number of the machine. In said former action the plaintiff took a voluntary nonsuit as to all the defendants and made a settlement with the said Williamson evidenced by the following paper writing:

Received of James N. Williamson, Jr., by and through his attorney, F S. Parker, Jr., the sum of two hundred dollars ($200), in full for any and all claims which the undersigned has or can have against the said Jas. N. Williamson, Jr., or Stephen I Moore, arising out of a collision between an automobile and a wagon and horse, the property of the undersigned, which occurred in Guilford county some time during the month of November, 1913. This settlement is specifically to cover any and all claims which the undersigned or any other parties occupants of the wagon, have or can have against the said Jas. N. Williamson, Jr., or Stephen I. Moore, because of any incident occurring at the time of or after said collision and said payment is accepted in full for all claims of any kind or nature which the undersigned or any other occupant of said wagon could have against the said James N. Williamson, Jr., or the said Stephen I. Moore for and on account of any reason whatsoever. This receipt is not intended to cover any claim which the undersigned might have against the owner of the automobile which was in said collision for injuries to horse and wagon, the plaintiff being at this date of opinion the said Williamson or Moore are not responsible for said collision. June 15, 1915. West Slade, by P. W. Glidewell, W. M. Hendren, Attorneys for West Slade."

The defendant pleaded the above settlement with Williamson as a bar to this action. The following issues were submitted to the jury:

(1) Was the plaintiff injured in his person and his property by the negligence of defendant, as alleged in the complaint? Answer: Yes.

(2) If so, did the plaintiff by his own negligence contribute to said injury, as alleged in the answer? Answer: No.

(3) Did the plaintiff receive from J. N. Williamson $200 in settlement and satisfaction of said injury? Answer: Yes.

(4) If so, did said settlement and satisfaction of said injury operate as a discharge of defendant? Answer: Yes.

(5) What damages, if any, is plaintiff entitled to recover of defendant? Answer: $150."

The jury answered the first, second, and fifth issues in favor of the plaintiff as above. But the court directed the jury to answer the third and fourth issues in favor of the defendant, and entered judgment upon the verdict against the plaintiff, who appealed.

Manly, Hendren & Womble, of Winston-Salem, and P. W. Glidewell, of Reidsville, for appellant.

W. J. Sherrod, of Greensboro, for appellees.

CLARK C.J.

The direction to the jury to enter a verdict that the settlement with Williamson was a bar to this action against Sherrod was a finding by the court, as a matter of law, that the receipt given by the plaintiff to Williamson was a release of the cause of action as against the defendant. And this presents the only point in this appeal.

It is true that the former action was brought against Williamson and the defendant Sherrod (no complaint being filed against the latter), in which there was a first cause of action set up against Williamson for the injury to the plaintiff and his horse and buggy, and a second cause of...