{ "id": 8550299, "name": "ALTON WILLIAM OTTINGER v. SIDNEY ANDREW CHRONISTER, ROBERT MICHAEL BILES, ROBERT JUNIOR BILES, WOODWARD SPECIALTY SALES, INC.", "name_abbreviation": "Ottinger v. Chronister", "decision_date": "1971-12-15", "docket_number": "No. 7127SC653", "first_page": "91", "last_page": "96", "citations": [ { "type": "official", "cite": "13 N.C. App. 91" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "149 A.L.R. 625", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "85 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "241 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613474 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/241/0532-01" ] }, { "cite": "119 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 443", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626679 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0443-01" ] }, { "cite": "128 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560917 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0390-01" ] }, { "cite": "158 S.E. 2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "272 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574343 ], "year": 1968, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0692-01" ] }, { "cite": "136 S.E. 2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565059 ], "opinion_index": 0, "case_paths": [ "/nc/262/0001-01" ] }, { "cite": "169 S.E. 2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547285 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0179-01" ] } ], "analysis": { "cardinality": 528, "char_count": 11956, "ocr_confidence": 0.533, "pagerank": { "raw": 9.759850193845885e-08, "percentile": 0.5313029833013431 }, "sha256": "a9254d1f54eecf3b7424e29c045a72862863bdc4e0f0b5512aaf4760f5964f3d", "simhash": "1:0f7df584e9d1b859", "word_count": 1931 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges PARKER and GRAHAM concur." ], "parties": [ "ALTON WILLIAM OTTINGER v. SIDNEY ANDREW CHRONISTER, ROBERT MICHAEL BILES, ROBERT JUNIOR BILES, WOODWARD SPECIALTY SALES, INC." ], "opinions": [ { "text": "MORRIS, Judge.\nThe 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.\nThe Uniform Contribution Among Tortfeasors Act (G.S. IB-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, \u201cpending litigation\u201d 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.\n\u201cLegal 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: \u2018A valid release of one of several joint tortfeasors releases all and is a bar to a suit against any of them for the same injury. This is true for the reasons 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 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.)\u2019\u201d Thrift v. Trethewey, 272 N.C. 692, 695, 158 S.E. 2d 777, 779 (1968).\nThe 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\u2019s cause of action against the administratrix upon payment of $3500. A document labeled \u201cSatisfaction of Judgment\u201d purported to reserve plaintiff\u2019s cause of action against the corporate defendant. The corporate defendant\u2019s amended answer alleged, however, that the transaction was a \u201crelease.\u201d 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\u2019s action against the corporate defendant. On appeal to the North Carolina Supreme Court, the judgment dismissing plaintiff\u2019s cause of action was affirmed.\n\u201cIf 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.\u201d Simpson v. Plyler, supra, at p. 395.\nIn 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:\n\u201cThe 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\u2019s 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\u2019s 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.\u201d Simpson v. Plyler, supra, at pp. 394, 395.\nFor 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 \u201csingle and indivisible\u201d cause of action against all four defendants when he consented to the judgment of dismissal \u201cwith prejudice\u201d to his right to pursue his action further against defendants Biles. The legal import of the words \u201cwith prejudice\u201d 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, \u00a7 482, p. 645; 149 A.L.R. 625-630.\nPlaintiff urges on appeal that the words \u201cwith prejudice\u201d do not appear in the effective portion of the order and that the action is merely dismissed, not dismissed \u201cwith prejudice.\u201d We find no merit in this contention. Nor do we agree with plaintiff\u2019s theory that dismissal of plaintiff\u2019s \u201caction\u201d is not synonymous with dismissal of the \u201ccause of action.\u201d\nSince we are of the opinion that the case is controlled by Simpson v. Plyler, swpra, the judgment must be\nAffirmed.\nJudges PARKER and GRAHAM concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Childers and Fowler, by Henry L. Fowler, Jr., for plaintiff appellant.", "Mullen, Holland and Harrell, by James Mullen, and Hollo-well, Stott and Hollowell, by Grady B. Stott, for defendant appellees." ], "corrections": "", "head_matter": "ALTON WILLIAM OTTINGER v. SIDNEY ANDREW CHRONISTER, ROBERT MICHAEL BILES, ROBERT JUNIOR BILES, WOODWARD SPECIALTY SALES, INC.\nNo. 7127SC653\n(Filed 15 December 1971)\n1. Torts \u00a7 7\u2014 abolishment of distinction between release and covenant not to sue\nThe Uniform Contribution Among Tortfeasors Act (G.S. IB-4), which abolished the distinction between a release and a covenant not to sue, does not apply to litigation pending on 1 January 1968.\n2. Torts \u00a7 2\u2014 joint tort-feasors \u2014 single cause of action\nFor an injury by joint tort-feasors, there is a single cause of action for all damages, and there can be only one recovery and satisfaction.\n3. Torts \u00a7 7\u2014 covenant not to sue one joint tort-feasor \u2014 consent judgment of nonsuit \u2014 release barring action against other tort-feasor\nWhere plaintiff instituted an action against alleged joint tort-feasors prior to 1 January 1968, plaintiff, for a consideration of $5,000, thereafter executed a covenant not to sue one tort-feasor which reserved plaintiff\u2019s right to proceed against other tort-feasors, and pursuant thereto a consent judgment was entered in which plaintiff took a voluntary nonsuit with prejudice as to the tort-feasor plaintiff had covenanted not to sue, it was held that the consent judgment extinguished plaintiff\u2019s cause of action and constituted a release barring the right to maintain the action against the other tort-feasor, notwithstanding the intent of the parties and the provision attemping to reserve the right of action against other tort-feasors.\nAppeal by plaintiff from Anglin, Judge, 17 May 1971 Session, Superior Court of Gaston County.\nPlaintiff, Alton William Ottinger, was injured by the alleged concurrent negligence of Sidney Andrew Chronister and Robert Michael Biles. About 9:15 p.m. on 9 July 1966 plaintiff was a passenger in an automobile owned and being operated by Chronister, an employee of Woodward Specialty Sales, Inc. (Woodward). The defendant, Robert Michael Biles, was operating an automobile owned by his father, Robert Junior Biles, when the two cars collided at the intersection of N.C. Highway 49 and Rural Paved Road 1578 in Stanly County near Richfield. On 21 November 1966 the plaintiff instituted this action against Sidney Andrew Chronister, Woodward Specialty Sales, Inc., Robert Michael Biles, and Robert Junior Biles as guardian ad litem for his minor son.\nOn 27 April 1968 plaintiff executed a document entitled \u201cCovenant Not to Sue\u201d, denominated in the notary\u2019s certificate as a \u201crelease.\u201d By the terms of this document plaintiff acknowledged the receipt of $5,000 and agreed: \u201cto refrain forever from commencing, instituting, procuring, pressing, permitting, continuing, or in any way aiding any claim, suit, action, cause of action or proceeding by or on behalf of myself against Robert Junior Biles or Robert Michael Biles and all persons, firms and corporations which might be liable for the acts of the aforesaid parties, for damages, costs or expenses, including all claims for damages for personal injuries, medical expenses and pain and suffering on account of or arising out of an accident which occurred in Stanly County, North Carolina at or near the intersection of North Carolina Highway 49 and Rural Paved Road 1578 on or about July 9, 1966 involving a motor vehicle owned by Robert Junior Biles and driven by Robert Michael Biles and an automobile driven by Sidney Andrew Chronister in which I was a passenger.\u201d The document concluded by \u201cexpressly reserving to the undersigned (plaintiff), however, all rights to proceed against Sidney Andrew Chronister, Woodward Specialty Sales, Inc. or any other person, firm or corporation other than the parties aforesaid for all claims, demands, loss and expense and causes of action arising out of the aforesaid accident.\u201d\nAs a result of that agreement the following order was entered by the Clerk of Gaston Superior Court on 6 May 1968:\n\u201cThis Cause coming on to be heard before the undersigned Clerk of Superior Court for Gaston County, North Carolina, and it appearing to the Court that the plaintiff desires to take a voluntary nonsuit as to the defendants Robert Michael Biles and Robert Junior Biles with prejudice to the plaintiff\u2019s right to pursue his action against them further;\nIt Is, Therefore, Ordered, Adjudged and Degreed that this action as to the defendants Robert Michael Biles and Robert Junior Biles be, and it hereby is, dismissed.\u201d (Emphasis added.)\nOn 24 June 1968, a motion by defendants Chronister and Woodward was allowed permitting them to amend their answers. The answers as amended alleged that the entry of a judgment releasing one joint tort-feasor releases all; that the judgment of nonsuit entered 6 May 1968 constituted a release of defendants Biles; that the release of defendants Biles constituted a plea in bar to recovery from defendants Chronister and Woodward; and that for these reasons, the plaintiff\u2019s action against Chronister and Woodward should be dismissed. Plaintiff, by way of reply, admitted that he executed a paper writing entitled \u201cCovenant Not to Sue\u201d for which he was paid $5,000 and that a judgment of nonsuit was entered 6 May 1968. In his reply, however, plaintiff denied that the judgment of nonsuit constituted a \u201crelease\u201d of Robert Michael Biles and Robert Junior Biles.\nAt a hearing held 20 May 1971, the court made the following conclusions of law, to each of which plaintiff excepted:\n\u201c1. That the judgment agreed upon between the plaintiff, his counsel, and counsel for the defendants Biles, dismisses the cause of action and withdraws the same \u2018with prejudice\u2019 to the plaintiff\u2019s right to pursue his action against the defendants Biles and that said judgment dismisses the cause of action.\n2. That the cause of action is single and indivisible and that said judgment and acceptance of the sum of $5,000.00 amounts to a relinquishment of plaintiff\u2019s claim and right of action against the defendants Biles and releases the defendants, Sidney Andrew Chronister and Woodward Specialty Sales, Inc.\u201d\nPlaintiff appeals the entry of the order allowing the plea in bar and dismissing the action against defendants Chronister and Woodward.\nChilders and Fowler, by Henry L. Fowler, Jr., for plaintiff appellant.\nMullen, Holland and Harrell, by James Mullen, and Hollo-well, Stott and Hollowell, by Grady B. Stott, for defendant appellees." }, "file_name": "0091-01", "first_page_order": 115, "last_page_order": 120 }