Ottinger v. Chronister

185 S.E.2d 292 (1971)

13 N.C. App. 91

Alton William OTTINGER v. Sidney Andrew CHRONISTER et al.

No. 7127SC653.

Court of Appeals of North Carolina.

December 15, 1971.

*294 Childers & Fowler by Henry L. Fowler, Jr., Mount Holly, for plaintiff appellant.

Mullen, Holland & Harrell by James Mullen, and Hollowell, Stott & Hollowell by Grady B. Stott, Gastonia, for defendants appellees.

MORRIS, Judge.

The sole question for determination on this appeal is whether the transactions in question constitute in law a release so as to bar the prosecution of the action against the defendants Sidney Andrew Chronister and Woodward Specialty Sales, Inc.

The Uniform Contribution Among Tortfeasors Act (G.S. § 1B-4) abolishes the distinction between a release and a covenant not to sue. Unfortunately for the plaintiff in this case, the Act did not become effective until 1 January 1968, and does not apply to litigation pending at that time. This action was instituted 21 November 1966, and was, therefore, "pending litigation" on the effective date of the Act. Simmons v. Wilder, 6 N.C.App. 179, 169 S.E.2d 480 (1969). Thus in this case, the distinction between a covenant not to sue and a release is critical.

"Legal principles pertinent to decision on this appeal are summarized by Moore, J., in McNair v. Goodwin, 262 N.C. 1, 136 S.E.2d 218, as follows: `A valid release of one of several joint tort-feasors releases all and is a bar to a suit against any of them for the same injury. This is true for the reason that the injured party is entitled to but one satisfaction, the cause of action is indivisible, and the release operates to extinguish the cause of action. (Citations omitted.) But a covenant not to sue does not release and extinguish the cause of action, and the cause of action may be maintained *295 against the remaining tort-feasors notwithstanding the covenant. (Citations omitted.) The remaining tort-feasors are entitled, however, to have the amount paid for the covenant credited on any judgment thereafter obtained against them by the injured party. (Citations omitted.)'" Thrift v. Trethewey, 272 N.C. 692, 695, 158 S.E.2d 777, 779 (1968).

The facts of the present case appear to be indistinguishable from the case of Simpson v. Plyler, 258 N.C. 390, 128 S.E.2d 843 (1963), wherein the above legal principles were applied. In Simpson, the plaintiff executed a document purporting to be a covenant not to sue administratrix but reserving the right to sue the corporate defendant. Thereafter, pursuant to said covenant, a consent judgment was entered terminating plaintiff's cause of action against the administratrix upon payment of $3500. A document labeled "Satisfaction of Judgment" purported to reserve plaintiff's cause of action against the corporate defendant. The corporate defendant's amended answer alleged, however, that the transaction was a "release". A jury found the transaction to be a covenant not to sue, but the court set the verdict aside. At a new trial, the court found that the agreement, judgment and satisfaction of judgment constituted a release and dismissed plaintiff's action against the corporate defendant. On appeal to the North Carolina Supreme Court, the judgment dismissing plaintiff's cause of action was affirmed.

"If it appears from the instrument that covenantor has discharged his cause of action against the covenantee, a joint tort-feasor, it is not a matter for construction, all joint tort-feasors are released. (Citations omitted.) The crucial question, in determining whether an instrument is a release or a covenant not to sue, is whether the cause of action has been extinguished. The cause of action is single, indivisible and non-apportionable. Once it is extinguished it has no further vitality. A holding otherwise would abolish the release rule altogether and ignore the basis upon which the rule rests." Simpson v. Plyler, supra, at p. 395, 128 S.E.2d at p. 846.

In the present case, the clear intent of the plaintiff was to reserve his cause of action against Chronister and Woodward. Nevertheless, the Court said in Simpson that:

"The recitals of the parties are not controlling. (Citations omitted.) Where the language of the instrument is so comprehensive and inclusive that it amounts to a relinquishment of the injured person's claim and right of action against a joint tort-feasor, or where the instrument expressly provides that it shall be a defense and bar to the former's cause of action against the latter, all of the joint tort-feasors are released. This is true even if the instrument purports to save and reserve the cause of action against the other wrongdoers." Simpson v. Plyler, supra, at pp. 394, 395, 128 S.E.2d at p. 846.

For an injury by joint tort-feasors, there is a single cause of action for all damages, and there may be only one recovery and satisfaction. Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209 (1961). The cause of action is single and indivisible. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909 (1955). Plaintiff extinguished the "single and indivisible" cause of action against all four defendants when he consented to the judgment of dismissal "with prejudice" to his right to pursue his action further against defendants Biles. The legal import of the words "with prejudice" as applied to a judgment of dismissal is to terminate the action operating as res judicata and barring any further prosecution by the plaintiff of the same cause of action. 46 Am.Jur.2d, § 482, p. 645; 149 A.L.R. 625-630.

Plaintiff urges on appeal that the words "with prejudice" do not appear in the effective portion of the order and that the action is merely dismissed, not dismissed *296 "with prejudice". We find no merit in this contention. Nor do we agree with plaintiff's theory that dismissal of plaintiff's "action" is not synonymous with dismissal of the "cause of action".

Since we are of the opinion that the case is controlled by Simpson v. Plyler, supra, the judgment must be

Affirmed.

PARKER and GRAHAM, JJ., concur.