#### WEST SLADE v. W. J. SHERROD et al.

(Filed 10 April, 1918.)

1. Torts — Joint Tort Feasors — Independent Tort — Payment—Release—Covenant Not to Sue.

While a release of one joint tort feasor from liability from the same tort will release the other, a covenant not to sue one of them and a compromise and settlement with him of his liability for a separate tort will not have this effect.

2. Same — Nonsuit.

Where a passenger in an automobile has been sued for damages alleged' to have been caused to the plaintiff’s buggy by his negligence in driving-the machine, and also for an assault upon him while taking its license number, and a compromise has been made as to the assault with the statement that the plaintiff did not consider him responsible for the damages to the buggy, and a voluntary nonsuit has consequently been taken, the plaintiff, in his action against the owner of the machine for the alleged negligence of his driver, is not barred by his compromise of the separate tort or his voluntary nonsuit in the former action.

3. Estoppel — Judgment—Nonsuit.

A voluntary nonsuit does not operate as an estoppel by judgment of the matters alleged in the pleadings.

4. Instructions — Verdict Directing — Tort Feasors.

Where there is evidence tending to show that one of several joint tort feasors has compromised with the damaged person for a separate and independent tort, it is error for the trial judge to instruct a verdict, in an action against another of the tort feasors for the other tort, that such compromise operated as a release to the defendant in the action.

5. Torts — Covenant Not to Sue — Payments—Credits.

A covenant not to sue one of several joint tort feasors does not release the others, and any amount paid by him is only a credit to be entered in the final recovery.

Brown, J., dissenting; Walker, J., concurring in the dissenting opinion.

Appeal by plaintiff from Harding, J., at June Term, 1917, of Rook-INGHAM.

Tbe plaintiff, a colored man, brings this action against tbe defendant Sberrod, tbe owner of an automobile, and tbe automobile company of wbicb be is president to recover damages for tbe loss of bis borse and injury to bimself and bis buggy, alleged to bave been caused in the operation of an automobile owned by tbe defendant Sberrod and operated by bis servant. Tbe plaintiff brought a former action against James N. Williamson, Jr., in wbicb this defendant was named as codefendant in tbe summons, but tbe complaint was filed against Williamson only,, in wbicb there were two causes of action alleged, one for this injury *347and a second cause of action for an assault and battery committed on tbe plaintiff by said Williamson, wbo was a passenger in tbe machine, to prevent tbe plaintiff from ascertaining tbe number of tbe machine.

In said former action tbe plaintiff took a voluntary nonsuit as to all tbe defendants and made a settlement with tbe said Williamson, evidenced by tbe following paper-writing:

“Received of James N. Williamson, Jr., by and thru bis attorney, F. S. Parker, Jr., tbe sum of two hundred dollars ($200), in full for any and all claims which tbe undersigned has or can have against tbe said Jas. N. Williamson, Jr., or Stephen I. Moore, arising out of a collision between an automobile and a wagon and horse, tbe property of tbe undersigned, which occurred in Guilford County some time during tbe month of November, 1913.

“This settlement is specifically to cover any and all claims which tbe undersigned or any other parties, occupants of tbe wagon, have or can have against tbe said Jas. N. Williamson, Jr., or Stephen I. Moore, because of any incident occurring at tbe time of or after said collision, and said payment is accepted in full for all claims of any kind or nature which tbe undersigned or any other Occupant of said wagon could have against tbe said James N. Williamson, Jr., or tbe said Stephen I. Moore, for and on account of any reason whatsoever.

“This receipt is not intended to cover any claim which tbe undersigned might have against tbe owner of tbe automobile which was in said collision for injuries to'horse and wagon, tbe plaintiff being at this date of opinion tbe said Williamson or Moore are not responsible for said collision. West Slade.

By P. W. Glidewbll,

W. M. ÜENDREN,

15 June, 1915. Attorneys for West Slade."

Tbe defendant pleaded tbe above settlement with Williamson as a bar to this action. Tbe following issues were submitted to tbe -jury:

1. Was tbe plaintiff injured in bis person and bis property by tbe negligence of defendant, as alleged in tbe complaint? Answer: “Yes.”

2. If so, did tbe plaintiff by his own negligence contribute to said injury, as alleged in tbe answer ? Answer: “No.”

3. Did tbe plaintiff receive from J. N. Williamson $200 in settlement and satisfaction of said injury? Answer: “Yes.”

4. If so, did said settlement and satisfaction of said injury operate as a discharge of defendant? Answer: “Yes.”

5. What damages, if any, is plaintiff entitled to recover of defendant ? Answer: “$150.”

*348Tbe jury answered tbe first, second, and fifth issues in favor of tbe plaintiff as above. But tbe court directed tbe jury to answer tbe third and fourth issues in favor of tbe defendant and entered judgment upon tbe verdict against tbe plaintiff, who appealed.

Manly, Eendren & Womble and P. W. Glidewell for plaintiff.

W. J. Sherrod for defendant.

Clajrk, C. J.

Tbe direction to tbe jury to enter a verdict that tbe settlement with "Williamson was a bar to this action against Sherrod was a finding by tbe court as a matter of law, that tbe receipt given by tbe plaintiff to Williamson was a release of tbe cause of action as against tbe defendant. And this presents tbe only point in this appeal.

It is true that tbe former action was brought against Williamson and tbe defendant Sherrod (no complaint being filed against tbe latter) in which there was a first cause of action set up -against Williamson for tbe injury to tbe plaintiff and bis horse and buggy, and a second cause of action against Williamson only for tbe. assault. Tbe plaintiff in this action put on testimony that having ascertained that Williamson was merely a passenger and nowise liable for tbe injury caused by tbe collision, be took a nonsuit as to both causes of action and compromised with Williamson as to the' second cause of action as to tbe assault for which Williamson only was liable.

However, that may be, tbe plaintiff is not estopped by bis pleadings in tbe first action, for there was no judgment, but merely a voluntary nonsuit.

Tbe correctness of tbe judge’s ruling that tbe receipt given to Williamson is a bar to this action against Sherrod depends upon tbe construction given to that settlement.

It is true that where there are joint tort feasors, there can be but one recovery and a settlement with one is a release of tbe other. Sircey v. Rees, 155 N. C., 297; 24 A. & E., 306. There is an exception when there is not a release, but merely a “covenant not to sue” is given to one tort feasor, in which latter case tbe amount paid is simply a credit to be entered on tbe total recovery. Mason v. Stephens, 168 N. C., 370.

But this action is against tbe owner of tbe automobile alone, and tbe motor company of which he is president, and tbe paper-writing is a release to Williamson of tbe second cause of" action in tbe former suit only, which was against Williamson alone, upon an assault and battery committed upon tbe plaintiff after tbe collision and tbe injury done to bis horse and buggy, in which assault tbe defendant Sherrod was in no wise concerned. Tbe plaintiff admits in tbe receipt that Williamson was in nowise liable for tbe injury to tbe horse and buggy from tbe collision. *349But if be bad been jointly liable therefor, tbe receipt embraced only tbe assault as to wbicb Williamson alone was liable, for tbe receipt given Williamson recites in tbe last clause: “Tbis receipt is not intended to cover any claim wbicb tbe undersigned might bave against tbe owner of tbe automobile wbicb was in said collision for injuries to borse and wagon, tbe plaintiff being at tbis date of opinion tbe said Williamson or Moore are not responsible for said collision.”

Tbe receipt on its face states that tbe settlement was with Williamson and Moore only, and that tbe plaintiff did not deem that Williamson or Moore were in any wise responsible for tbe collision. It was error to instruct tbe jury that such receipt was a settlement for tbe damages sustained by the collision contrary to such statement in tbe receipt. There was evidence by Mr. Glidewell: “Tbe settlement was with tbe distinct understanding that nothing was settled except tbe assault.” Also that be told tbe defendant Sherrod that be was “going to settle with Mr. Williamson for tbe assault and bold him (Sherrod) liable for thp collision.” Tbe instruction of tbe court to find tbe third and fourth issues to tbe contrary was an instruction to tbe jury to disregard tbis evidence as erroneous.

In tbe strongest light for tbe defendant, tbe issues 3 and 4 should bave been submitted to tbe jury. It may be we might grant a partial new trial upon those two issues, but tbe defendant in tbis court, appearing for himself, states in bis brief that it is agreed that if tbis court held there was error in tbe instruction of tbe judge that tbe legal effect of tbe receipt was to bar tbis action, that judgment might be entered here in favor of tbe plaintiff for $150, as found by tbe jury in answer to tbe fifth issue, as tbe damages sustained by reason of tbe collision.

Judgment will, therefore, be entered accordingly in tbis court.

Eeversed.

BROWN, J.,

dissenting: I am of opinion that tbe judge of tbe Superior Court correctly held that tbe defendant, as well as Williamson, was released from all liability “arising out of a collision between an automo,bile and a wagon and borse, tbe property of tbe undersigned” (tbe plaintiff). Tbe paper-writing is specific in its terms in releasing Williamson from such liability, and therefore, it releases tbe defendant, a joint tort feasor. Howard v. Plumbing Co., 154 N. C., 224.

Tbe release does not mention any assault, but' on tbe other band, specifically states it is settlement of damages arising out of a collision between plaintiff’s wagon, wbicb it is admitted is tbe collision for wbicb tbis action was brought.

In Howard v. Plumbing Co., supra, it is held: “Therefore, if be accepts tbe satisfaction voluntarily made by one, that is a bar to all. And *350so a release of one releases all, altbougli tbe release expressly stipulates tbat tbe other defendant shall not be released. And this rule is held to apply even though the one released was not in fact liable.”

The ruling above quoted settles conclusively any question as to the effect of the last paragraph of the release, in which it stipulates that it shall not bar any action against this defendant.