Kendrick v. Cain

159 S.E.2d 33 (1968)

272 N.C. 719

Odis Fletcher KENDRICK, Administrator of the Estate of Jimmy Ray Kendrick v. Glenn Winfred CAIN and George E. Haddock.

No. 614.

Supreme Court of North Carolina.

February 2, 1968.

*34 John Randolph Ingram, Asheboro, for plaintiff-appellant.

Jordan, Wright, Henson & Nichols, Greensboro, for defendants-appellees.

BRANCH, Justice.

Plaintiff's action is brought under the wrongful death statute, G.S. § 28-173, et seq., against defendants as joint tort-feasors.

Appellee Cain contends that plaintiff can have only one recovery and that when plaintiff accepted the full amount of the judgment entered against defendant Haddock, plaintiff's appeal became moot. The statute (G.S. § 28-173 et seq.) contemplates only one cause of action, and when the action is brought by the personal representative, the judgment is conclusive on other persons, and the right given by the statute is exhausted. 16 Am.Jur., Death, § 161, p. 103.

Clearly, the statute contemplates that if plaintiff be entitled to recover at all, he is entitled to recover as damages one compensation in a lump sum. Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421; Bell v. Hankins, 249 N.C. 199, 105 S.E.2d 642. He is not entitled to recover the whole sum from each of the joint tort-feasors. Watson v. Hilton, 203 N.C. 574, 166 S.E. 589.

Although a covenant not to sue, procured by one tort-feasor, does not release the other from liability, Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209, 94 A.L.R.2d 348, it is a well settled doctrine of the law that a release of one joint tortfeasor *35 ordinarily releases them all. Mac-Farlane v. Wildlife Resources Comm., 244 N.C. 385, 93 S.E.2d 557; King v. Powell, 220 N.C. 511, 17 S.E.2d 659.

In the case of Sircey v. Rees' Sons, 155 N.C. 296, 71 S.E. 310, plaintiff, employee of Southern Railway Company, was injured when employer's train was being backed onto defendant's siding. Plaintiff alleged defendant was negligent in placing tan bark so near the track as to cause his injury. The complaint stated facts sufficient to show joint negligence of defendant and the railway company. At the trial, defendant relied on a release given by plaintiff to Southern Railway Company. The trial court dismissed the action. Affirming the decision of the trial court, this Court quoted with approval from Cooley, J., on Torts as follows:

"`It is to be observed in respect to the point above considered, where the bar accrues in favor of some of the wrongdoers by reason of what has been received from or done in respect to one or more others, that the bar arises, not from any particular form that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent. Therefore, if he accepts the satisfaction voluntarily made by one, that is a bar to all. And so a release of one releases all, * * * It is immaterial whether the satisfaction is obtained by judgment and final process in execution of it, or by amicable adjustment without any litigation of the claim for damages. The essential thing is satisfaction. * * *"

Further, as a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist. Cochran v. Rowe, 225 N.C. 645, 36 S.E.2d 75; In re Estate of Thomas, 243 N.C. 783, 92 S.E.2d 201; Simmons v. Simmons, 223 N.C. 841, 28 S.E.2d 489.

In 4 Am.Jur.2d, Appeal and Error, (3) Acceptance of Benefits of Judgment or Decree, § 250, p. 745, it is stated:

"A party who accepts an award or legal advantage under an order, judgment, or decree ordinarily waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted. This is so even though the judgment, decree, or order may have been generally unfavorable to the appellant."

Appellant contends that his acceptance of the full amount of the judgment against defendant Haddock did not affect his right to appeal, since the word "satisfied" was not entered upon the judgment index. There is no merit to this contention, since the effect of G.S. § 1-239 is to make the clerk the statutory agent of the owner of a judgment, and it is the clerk's duty to pay money received thereunder to the party entitled thereto. The clerk and his surety would be liable to the owner of the judgment for any loss which he might suffer because of the clerk's failure to perform his statutory duty. There is no duty on the party making payment to require the clerk to make an entry on the judgment docket. Dalton v. Strickland, 208 N.C. 27, 179 S.E. 20.

In the instant case, the record shows that defendant Haddock paid the sum necessary to satisfy the judgment to the clerk, and the clerk duly paid the sum to the party entitled to it. Thus the plaintiff is not aggrieved by the failure of the clerk to enter the word "satisfied" on the judgment docket.

Here, the subject of the litigation has been disposed of by entry of judgment and satisfaction has been obtained by plaintiff by acceptance of the amount awarded by the judgment. Upon acceptance of the "fruits of the judgment" plaintiff's action against defendant Cain was extinguished.

Appeal dismissed.