Thrift v. Trethewey

158 S.E.2d 777 (1968)

272 N.C. 692

Rose B. THRIFT v. Frederick Harding TRETHEWEY.

No. 274.

Supreme Court of North Carolina.

February 2, 1968.

*779 Wardlow, Knox, Caudle & Wade, Charlotte, for plaintiff appellee.

Grier, Parker, Poe & Thompson and Gaston H. Gage, Charlotte, for defendant appellant.

BOBBITT, Justice.

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. Simpson v. Plyler, 258 N.C. 390, 128 S.E.2d 843; King v. Powell, 220 N.C. 511, 17 S.E.2d 659; Howard v. J. H. Harris Plumbing Co., 154 N.C. 224, 70 S.E. 285. But a covenant not to sue does not release and extinguish the cause of action, and the cause of action may be maintained against the remaining tort-feasors notwithstanding the covenant. Simpson v. Plyler, supra; Slade v. Sherrod, 175 N.C. 346, 95 S.E. 557. 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. Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209, 94 A.L.R.2d 348; Holland v. Public Utilities Co., 208 N.C. 289, 180 S.E. 592."

The "written agreement" between plaintiff and Canipe, originally pleaded by defendant as a bar to recovery, is in the record before us. After a hearing, Judge Riddle held this "written agreement" to be a covenant not to sue, not a release. Upon application of legal principles set forth in Simpson v. Plyler, 258 N.C. 390, 128 S.E.2d 843, the ruling was correct. Be that as it may, defendant did not except to Judge Riddle's ruling and order. On the contrary, in the "Amendment to Answer" filed by defendant on September 16, 1966, relating *780 to his second further answer and defense, defendant alleged the consideration for Canipe's payment to plaintiff was "her agreement not to file suit against * * * Canipe." The said "written agreement," being a covenant not to sue, did not release and extinguish plaintiff's cause of action against Canipe and does not constitute a bar to plaintiff's right to maintain this action against defendant.

The said "written agreement," a covenant not to sue, is the only agreement between plaintiff and Canipe referred to in defendant's pleadings.

The "Clincher Agreement and Request for Distribution of Third Party Recovery," referred to in defendant's "Further Amendment to Answer," is an agreement between plaintiff, her employer and its insurance carrier. It relates to the distribution as between plaintiff and said carrier of the $2,650.00 plaintiff had received from Canipe in consideration of her covenant not to sue Canipe. Canipe is not a party to this agreement. It does not affect the rights of plaintiff and Canipe inter se.

The Commission's order of February 23, 1966, which merely implements the "Clincher Agreement," has no bearing upon the rights of plaintiff and Canipe inter se. Although the name, "George P. Canipe, Third Party Tort-Feasor," appears in the caption, Canipe was not a party to the proceeding. When considered in context, the provision in the Commission's order that $1,936.43 be paid to plaintiff "in full satisfaction of all her rights against the above named third party tort-feasor by reason of the injury to said plaintiff on January 29, 1965," refers to plaintiff's share of the $2,650.00 paid by Canipe as consideration for plaintiff's covenant not to sue. See G.S. § 97-10.2(f) (1) (d). The Commission had no jurisdiction to extinguish Canipe's liability to plaintiff or to bar plaintiff from maintaining an action against defendant. The fact Canipe had paid $2,650.00 to plaintiff in consideration of her covenant not to sue is the only circumstance that relates Canipe in any way to the proceeding before the Commission.

The "Clincher Agreement" and the Commission's order of February 23, 1966, relate solely to rights and liabilities as between plaintiff and her employer and its carrier. The allegations in defendant's "Further Amendment to Answer," purporting to allege a third further answer and defense, do not affect the rights of plaintiff and Canipe inter se which are defined in and established by plaintiff's covenant not to sue. The facts set forth therein are irrelevant and do not constitute a bar to plaintiff's right of action against defendant. Hence, the order of Judge Hasty is in all respects affirmed.

Affirmed.