Snyder v. Kenan Oil Co.

68 S.E.2d 805 (1952)

235 N.C. 119

SNYDER v. KENAN OIL CO. et al.

No. 739.

Supreme Court of North Carolina.

February 1, 1952.

*806 Long & Long, Graham, for appellants, Kenan Oil Co. and Theodore R. Keen.

Carroll & Pickard, Burlington, for appellee, Mary P. Dixon.

BARNHILL, Justice.

The settlement by the corporate defendant of the claim of defendant Dixon against it for personal injuries and property damages resulting from the collision of the truck being operated by Keen, the agent and employee of the oil company, and the 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 his peace respecting any liability created by the collision. The adjustment of said claim by the payment of the amount agreed constituted an acknowledgment, as between the parties, of the liability of the oil company and the nonliability, or at least a waiver of the liability, of the defendant Dixon.

Neither party thereafter had any right to pursue the other in respect to any liability arising out of any alleged negligence proximately causing the collision which is the 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. Hamilton-Brown Shoe Co., 167 N.C. 280, 83 S.E. 487; Armstrong v. Polakavetz, 191 N.C. 731, 133 S.E. 16; Bohannon v. Trotman, 214 N.C. 706, 200 S.E. 852. "Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon the same account." Hinson v. Davis, 220 N.C. 380, 17 S.E.2d 348, 350.

Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505, is, by analogy, in point and is controlling here. There the settlement was effected by a consent judgment entered in a suit pending, but the principle is the same.

But settlement with other passengers in the automobile was in no sense an acknowledgment of the 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. Southern Public 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 in the automobile. All reference to any adjustment of *807 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.