Snyder v. Kenan Oil Co., 235 N.C. 119 (1952)

Feb. 1, 1952 · Supreme Court of North Carolina
235 N.C. 119


(Filed 1 February, 1952.)

■ 1. Compromise and Settlement § 2—

A completed settlement of a claim arising out of a collision bars either party from thereafter asserting any liability against the other arising out of any negligence proximately causing the collision.

2. Automobiles § 21: Torts § 6: Pleadings § 31—

In an automobile guest’s action against the driver and owner of the truck involved in a collision with the car, defendants had the driver of the car joined for the purpose of enforcing contribution, C.S. 1-240. Held: The driver of the ear is entitled to set up a previous settlement of her claim against the truck owner and driver as a bar, but is not entitled to set up settlement of the claims of her children, also passengers in the car, arising out of the collision, and motion to strike should be ruled upon accordingly.

Appeal by original defendants from Williams, J., September Term, 1951, AlamaNCE.

Civil action in tort to recover compensation for personal injuries sustained in an automobile-truck collision, heard on motion to strike allegations contained in the answer of defendant Mary P. Dixon, additional party defendant.

Plaintiff was a passenger on an automobile operated by defendant Dixon. The automobile collided with a truck owned by the corporate defendant and being operated at the time by defendant Keen. The original defendants filed an answer in which they allege negligence on the part of the defendant Dixon. On the allegations thus made, they moved the court that she be made a party defendant as joint tort-feasor for the purpose of enforcing contribution as provided by G.S. 1-240. Defendant Dixon was duly made a party defendant and filed her answer in which she admits the collision between her automobile and the truck of corporate defendant and alleges (1) the negligence of the driver of the truck as the proximate cause of the collision; (2) the resulting injuries sustained by her and the passengers on her automobile and damages to the automobile; (3) settlement by the corporate defendant with her and her *120husband for personal injuries and property damages to tbe automobile and also settlement for personal injuries inflicted upon ber two minor children wbo were passengers on said automobile at tbe time of tbe collision. Sbe specifically pleads “such settlements and payments in bar of tbe right of tbe defendant, Kenan Oil Company, to recover against this defendant by contribution or otherwise by cross-action herein.”

Tbe original defendants appeared and moved to strike paragraphs 2 and 4 of the cross answer which contains said allegations in reference to said settlements. Tbe motion was denied and defendants appealed.

Long & Long for appellants, Kenan OH Company and Theodore B. Keen.

Carroll & Piclcard for appellee, Mary P. Dixon.

BaRNHill, J.

Tbe settlement by tbe corporate defendant of tbe claim of defendant Dixon against it for personal injuries and property damages resulting from tbe collision of tbe truck being operated by Keen, tbe agent and employee of the oil company, and tbe automobile being operated by defendant Dixon, as effectually adjusted and settled all matters which arose or might arise out of said collision, as between the oil company and Dixon, as would a judgment duly entered in an action between said parties. By said compromise settlement each party bought bis peace respecting any liability created by tbe collision. Tbe adjustment of said claim by tbe payment of tbe amount agreed constituted an acknowledgment, as between tbe parties, of tbe liability of tbe oil company, and tbe nonliability, or at least a waiver of tbe liability, of tbe defendant Dixon.

Neither party thereafter bad any right to pursue tbe other in respect to any liability arising out of any alleged negligence proximately causing tbe collision which is tbe subject matter of this suit.

“A concluded agreement of compromise must, in its nature, be as obligatory, in all respects, as any other, and either party may use it whenever its stipulations or statements of fact become material evidence for him.” Sutton v. Robeson, 31 N.C. 380; Peyton v. Shoe Co., 167 N.C. 280, 83 S.E. 487; Armstrong v. Polakavetz, 191 N.C. 731; Bohannon v. Trotman, 214 N.C. 706. “Accord is a satisfaction agreed upon between tbe party injuring and tbe party injured, which, when performed, is a bar to all actions upon tbe same account.” Hinson v. Davis, 220 N.C. 380, 17 S.E. 2d 348.

Herring v. Coach Co., 234 N.C. 51, is, by analogy, in point and is controlling here. There tbe settlement was effected by a consent judgment entered in a suit pending, but tbe principle is tbe same.

But settlement with other passengers on tbe automobile was in no sense an acknowledgment of tbe nonliability of Dixon as a joint tort-*121feasor. While the passengers, by making settlement with one joint tort-feasor, waived any right they might have possessed to seek compensation from the other, King v. Powell, 220 N.C. 511, 17 S.E. 2d 659; Holland v. Utilities Co., 208 N.C. 289, 180 S.E. 592, the tort-feasor making settlement with them waived no right it possessed to assert its claim to contribution against the other alleged joint tort-feasor in an action by a passenger with whom no settlement has been made.

It follows that the court erred in denying the motion in respect to allegations of settlement with passengers on the automobile. All reference to any adjustment of any claim other than that of the operator and owner of the automobile should be stricken as requested by the original defendants. The judgment entered must be so modified.

Modified and affirmed.