#### WAITS SMITH v. SOUTH AND WESTERN RAILROAD COMPANY.

(Filed 15 December, 1909.)

1. Independent Contractors — Joint Torts — Partition — Master and Servant.

A railroad company cannot be beld liable as a joint tort feasor witb its independent contractor for an injury to an employee of tlie latter, when there is no evidence or suggestion that tbe former assumed an active part, by encouragement, direction or control of tbe work wherein tbe injury complained of was received.

2. Same — Release of Liability — Effect.

Tbe plaintiff received tbe injury complained of while engaged in tbe employment of an independent contractor of a railroad company in building tbe latter’s roadbed, and brought suit against tbe railroad and tbe contractor, alleging that they were joint tort feasors. He introduced tbe contract between tbe defendants *480wherein it appeared that the contractor had agreed to indemnify the railroad from liability of the character demanded by plaintiff. Held, a release in full given by the plaintiff to the independent contractor in consideration of a compromise likewise released the liability of the railroad, in the absence of evidence tending to show that the latter actively participated in the alleged wrong. The principles of law applicable to the master’s liability for the wrongful acts of the servants discussed by Manning, J.

Appeal from Justice, J., August Term, 1909, of Rutherford.

The plaintiff sued to recover damages for an injury received by him, through the negligence of the defendants, while he was working for the Millard Quigg Construction Company, a corporation, under the laws of Virginia, engaged in constructing a part of the railroad of the South and Western Railroad Company. The injury was received in October, 1907. The plaintiff was employed to do the work of an ordinary laborer and belonged to the night force. The Millard Quigg Construction Company filed its petition to remove the cause to the Federal Court, and .from the order disallowing its motion and retaining the action in the State Court this company gave notice of appeal to the Supreme Court, whereupon the plaintiff executed on 30 August, 1909, for the consideration mentioned therein, which was paid, the following paper writing:

“North CaroliNA — Rutherford County.

Superior Court, August Term, 1909.

Waits Smith v. South and Western Railroad Company and Millard Quigg Construction Company.

“In the above-entitled cause, in order to secure a trial at this term of court, the plaintiff covenants and agrees with the Millard Quigg Construction Company, upon the call of the case for trial and upon entering upon a trial of the same at this term of court, to enter a nonsuit as to the defendant Millard Quigg Construction Company; and, in consideration of the sum of $550 paid to Waits Smith by the Millard Quigg Construction Company, the receipt whereof is hereby acknowledged, the 'said Waits Smith covenants and agrees with the Millard Quigg Construction Company not to prosecute any new or further action against the Millard Quigg Construction Company for any personal injuries sustained by the said Waits Smith whatsoever prior to this date, by any negligence of the Millard Quigg Construction Company.”

*481Tbe defendant railroad company bad, in its answer filed, denied all negligence, denied it bad employed or bad any control over tbe work of plaintiff; alleged tbat tbe construction company was an independent contractor; tbat tbe construction company bad employed plaintiff, designated bis work, and tbat if be was negligently injured it 'fras tbe negligence of tbe construction company.

His Honor permitted amendments to tbe pleadings on the part of tbe defendant, setting up tbe paper writing above quoted, and its effect, and tbe plaintiff to reply thereto. Tbe trial proceeded against tbe railroad company, and evidence was offered, detailing tbe injury received by plaintiff, tbe time, place and circumstances, and also tbat plaintiff was employed, paid and directed in bis work by tbe construction company. Tbe paper writing was also offered in evidence and admitted. Tbe plaintiff also offered tbe written contract under which tbe construction company was doing tbe work, which contract contained tbe stipulation tbat tbe construction company would indemnify tbe railroad company, among other things, “from damages arising from injuries sustained by mechanics, laborers or other persons, by reason of accident or otherwise, including cost and expense of defense, provided tbat be be duly notified of tbe bringing of suits in such cases, and be be permitted to defend tbe same by bis own counsel if be should, so select.” In tbe progress of tbe trial tbe plaintiff admitted tbat be sought to bold tbe defendants only as joint tort feasors, and at tbe close of bis evidence tbe defendants’ motion to nonsuit was sustained. Tbe plaintiff excepted and appealed to this Court.

R. E. Morris, J. M. Mull and <7. T. Perlcins for plaintiff.

Hudgins, Watson & Johnston for defendant.

MANNING, J.,

after stating tbe case: Tbe only question presented for our consideration by tbe briefs and argument of counsel is tbe effect of tbe paper writing executed by tbe plaintiff on 30 August, 1909, to tbe construction company. Upon tbe facts presented, the decision of this Court in Brown v. Louisburg, 126 N. C., 701, approved in Raleigh v. Railroad, 129 N. C., 265, is decisive. If tbe construction company were an independent con-' tractor, it would seem clear tbat the railway company would not be liable; and tbe plaintiff, therefore, by bis agreement with tbe construction company, has bound himself not to sue tbe only party legally liable to him. Avery v. Railroad, 137 N. C., 130. Tbe only other theory of tbe liability of tbe railroad company *482to the plaintiff is that the railroad company was the master and the construction company the servant or the railroad company, the principal, and the construction company the agent, doing its work within the scope of its agency. That they were not tort feasors would seem to be settled in Brown v. Louisburg, supra, in which case this Court said: “The*defendants, howeyer, were not .joint tort feasors. To make persons joint tort feastors they must actively participate in the act which causes the injury.” The railroad company had no active part, by encouragement, direction or control, in, the doing of the work in which plaintiff was injured. There was no allegation or suggestion that the construction company was not a capable servant, or that the instrumentalities selected for doing the work were not properly suitable and in general use and good condition. The statement by plaintiff that he sought to recover from the defendants as joint tort feasors is not sustained by the authority cited or by the evidence offered.

We next consider the theory of liability growing out of the relations of master and servant or as principal and agent. The principle underlying the liability of the master for the acts of his agent is very clearly and succinctly stated by Alderson, B., in Hutchinson v. Railroad, 5 Exch., 343: “The principle upon which a master is in general liable to answer for accidents resulting from the negligence or unskillfulness of his servant is that the act of his servant is in truth his own act. If the master is himself driving his carriage and, from want of skill, causes injury to a passer-by, he is, of course, responsible for that want of skill. If, instead of driving the carriage with his own hands, he employs his servant to drive it, the servant is but an instrument set in motion by the master. It was the master’s will that the servant should drive, and whatever the servant does in order to give effect to his master’s will may be treated by others as the act of the master. Qui facit per alium, facit per se.”

If the relation of master and servant existed, or the relation of principal and agent, the servant in one relation or the agent in the other relation did the careless and unskillful act which injured the plaintiff and was primarily liable for it, and upon the principle expressed in the maxim, Qui facit, etc., the master or principal would be liable. If this principle is invoked to impose liability, can it not also be invoked for protection? If the master is bound through his agent, can he not be released through his agent? If an act of negligence imposes liability, ought not an act of fidelity bring relief? This would seem to be obvious, except in those cases where the master actively participates in *483the wrong and thereby makes bimself a joint tort feasor. Every doubt of the ultimate liability of the construction company for the injury to the plaintiff was removed when plaintiff offered in evidence the contract-, which expressly stipulated that the construction company should save harmless the railroad company from liability for such injuries. If the plaintiff should recover a larger sum from the railroad company, then, under the contract stipulation, the railroad company could recover from the construction company the judgment and expenses and costs. Such a result would be a complete destruction of the construction company’s rights under its contract with the plaintiff. We think this view is sustained by this language of Pearson, C. J., in Russell v. Adderton, 64 N. C., 417: “For which reason (the intention of the parties) the courts incline to adopt the construction which gives to the instrument the effect merely of a covenant not to sue, and the intention of the parties is carried out by allowing the creditor to take judgment at law, leaving the party who holds the covenant to his remedy in equity for a specific performance, by which he is fully protected, not only from paying any more directly, but, if there be sureties, by restraining the creditor from collecting any amount out of them, because that would subject him to their action and thus indirectly violate the covenant.” Under our present system, where law and equity, legal and equitable rights, are administered in the same action, his Honor, in the trial of this action, accomplished what Chief Justice Pearson declared could be done by a suit in equity.

After a careful consideration of the authorities effect in the elaborate brief of the learned counsel for the appellant, we are unable .to reach a different conclusion. The judgment of the court below is therefore

Affirmed.