Cannon v. Parker

106 S.E.2d 229 (1958)

249 N.C. 279

J. Archie CANNON, Jr., Trustee for Miller Motor Line of North Carolina, Inc., v. H. Bryce PARKER, Administrator of the Estate of Annie J. Young, Deceased, and Claudie Black, Administratrix of the Estate of Edgar McLee Black, Deceased.

No. 602.

Supreme Court of North Carolina.

December 10, 1958.

Frazier & Frazier, Greensboro, for plaintiff, appellant.

James J. Booker, Winston-Salem, for defendant, appellee.

BOBBITT, Justice.

Parker, Administrator, answered. He did not demur to the complaint either in writing or ore tenus. He demurred to the evidence. "A demurrer to a complaint, G.S. § 1-127, and a demurrer to the evidence, G.S. § 1-183, are different in purpose and result. One challenges the sufficiency of the pleadings, the other the sufficiency of the evidence." Lewis v. Shaver, 236 N.C. 510, 512, 73 S.E.2d 320, 321; Gantt v. Hobson, 240 N.C. 426, 431, 82 S.E.2d 384. The words "ore tenus" have no significance in relation to a demurrer to the evidence, i. e., a motion for judgment of nonsuit, under G.S. § 1-183.

Copies of Exhibits A and B were attached to the reply. Yet nothing appears in the record to indicate that the demurrer ore tenus was directed to the reply or that defendant moved for judgment on the pleadings. The record is explicit that the court's ruling was on defendant's demurrer to the evidence.

By the terms of the release (Exhibit A), Parker, Administrator, for and in consideration of $900 to him paid by Robert R. Cothran and Miller Motor Line of N.C., Inc., fully released and discharged them from liability on account of the collision referred to in the pleadings, particularly on account of the death of Annie J. Young as a result thereof. A further provision set forth an agreement that the payment of the $900 should not be construed as an admission on the part of Robert R. Cothran and Miller Motor Line of N. C., Inc., of any liability whatsoever in consequence of said injuries and accident.

We are confronted by the fact that the release shows on its face that Robert R. Cothran and Miller Motor Line of N. C., Inc., paid the release consideration of $900 to Parker, Administrator, and obtained the release. Nothing else appearing, plaintiff's action is barred. Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805, and cases cited; Houghton v. Harris, 243 N.C. 92, 89 S.E.2d 860.

In Snyder v. Kenan Oil Co., supra, on motion of the original defendants (Kenan Oil Company and Keen, its driver), Dixon *232 was made a party defendant as an alleged joint tort-feasor for the purpose of enforcing contribution as provided by G.S. § 1-240. Answering the allegations of the original defendants, Dixon pleaded, inter alia, that Kenan Oil Company had settled her claim against it for damages caused by the collision. It was held that the motion by the original defendants to strike Dixon's allegations as to such settlement was properly denied.

In opinion by Barnhill, J. (later C. J.), the Court said:

"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." [235 N.C. 92, 68 S.E.2d 806]

According to the evidence, Robert R. Cothran and Miller Motor Line of N. C., Inc., discharged their liability (whether admitted or controverted) to Parker, Administrator, on account of said collision, by their payment to him of $900 for a full release. They thereby released whatever rights they may have had to recover from Parker, Administrator, on allegations that the collision was caused by the negligence of Annie J. Young. The payment and release extinguished the liabilities of the parties thereto, inter se, on account of said collision. Nothing appears to dispel the clear implication that the parties, in reaching said compromise settlement, took into consideration their conflicting contentions as to the cause(s) of the collision.

We do not reach the question as to whether the facts alleged in the reply, if true, are sufficient to exempt plaintiff from the legal consequences which flow, nothing else appearing, from the release offered in evidence by plaintiff. Suffice to say, plaintiff offered no evidence to support the allegations in the reply relating to said release.

The judgment, according to the record, must be considered solely as a judgment of nonsuit under G.S. § 1-183. So considered, it must be affirmed.

Affirmed.

PARKER, J., not sitting.