Snyder v. Kenan Oil Co.

68 S.E.2d 805, 235 N.C. 119, 1952 N.C. LEXIS 330

• Court: Supreme Court of North Carolina
• Decided: February 1, 1952
• Docket: 739
• Status: Published

Opinion

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- feasor. 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.