King v. . Powell

17 S.E.2d 659, 220 N.C. 511, 1941 N.C. LEXIS 576

• Court: Supreme Court of North Carolina
• Decided: December 10, 1941
• Status: Published

Opinion

BaeNHill, J.

Conceding error in the charge on the first issue, the judgment must stand. The answer to the third issue bars plaintiff’s right to recover upon the principle that the release of one joint tort-feasor releases all. Holland v. Utilities Co., 208 N. C., 289, 180 S. E., 592; Howard v. Plumbing Co., 154 N. C., 224, 70 S. E., 285; Sircey v. Hans Rees’ Sons, 155 N. C., 296, 71 S. E., 310; Slade v. Sherrod, 175 N. C., 346, 95 S. E., 557; Braswell v. Morrow, 195 N. C., 127, 141 S. E., 489; Massey v. Public Service Co., 196 N. C., 299, 145 S. E., 561.

The plaintiff alleges that the Seaboard and the Rockingham Railroad Company were joint tort-feasors. The evidence, when considered in the light most favorable to the plaintiff, tends to so show. 'Otherwise it tends to exculpate the Rockingham Railroad Company and it establishes conclusively that if this defendant was not negligent the employee of the Seaboard, the section foreman, was. Hence, the plaintiff, having executed a release of the Seaboard, thereby released this defendant.

Just why this verdict was accepted and recorded by the judge without any objection on the part of the plaintiff for failure to require answers to the fourth and fifth issues, which are bottomed on plaintiff’s allegations of fraud and undue influence, does not appear. Nevertheless, the fact remains that this is the verdict before us and the plaintiff presents no exceptive assignment of error in respect to any 'issue other than the first. He complaineth not that the judge failed to require an answer to either the fourth or fifth issue. As to that, upon this record, he is apparently content.

It follows that the judgment below must be

Affirmed.