Payseur v. Rudisill , 15 N.C. App. 57 ( 1972 )

189 S.E.2d 562 (1972)

Russell PAYSEUR, by his Guardian ad Litem, Aileen Payseur
v.
Kenneth Dwight RUDISILL et al.

No. 7227SC92.

Court of Appeals of North Carolina.

June 28, 1972. Certiorari Denied August 31, 1972.

Thomas J. Wilson, Lincolnton, for plaintiff appellant.

Carpenter, Golding, Crews & Meekins by John G. Golding, Charlotte, for defendants appellees.

Certiorari Denied by Supreme Court August 31, 1972.

VAUGHN, Judge.

Where a release or a covenant not to sue is given to one or more persons liable in tort for the same injury it does not discharge any other tort-feasor from liability unless its terms so provide. G.S. § 1B-4.

The release in the present case clearly preserved the right to proceed against other tort-feasors. Here, however, the injured party is a minor. The settlement of a minor's tort claim becomes effective and binding upon him only upon judicial examination and adjudication. Sell v. Hotchkiss and Collier v. Hotchkiss and Hotchkiss v. Hotchkiss, 264 N.C. 185, 141 S.E.2d 259. It was therefore necessary for the minor's guardian ad litem to submit the proposed release agreement to the court. An agreement, not a dispute, was before Judge Friday. The court approved the release agreement and entered the order hereinbefore set out. The terms of the release have now been complied with by the parties thereto.

On motion of the remaining tort feasors, Judge Seay dismissed the minor's claim against them on the ground that the same was barred by G.S. § 1B-3(e) which is as follows:

"The recovery of judgment against one tort-feasor for the injury or wrongful death does not of itself discharge the other tort-feasors from liability to the claimant. The satisfaction of the judgment discharges the other tort-feasors from liability to the claimant for the same injury or wrongful death, but does not impair any right of contribution."

We hold that the order entered by Judge Friday, the execution of the release agreement which it approved and the payment of the agreed sum into the office of the Clerk of the Superior Court did not constitute a recovery and satisfaction of judgment within the meaning of G.S. § 1B-3(e).

In its consideration of the proposed release agreement the court's function was ". . . to lend its wisdom, experience, and circumspection to the infant, who legally wants these faculties and is therefore a likely victim of overreaching." 8 A.L.R. 2d 460, 462. The release agreement executed pursuant to the order is the controlling factor. McNair v. Goodwin, 262 N.C. 1, 136 S.E.2d 218. In this case, the infant plaintiff, having obtained the court's approval of his release agreement, is entitled to the same status as an adult executing a release under the provisions of G.S. § 1B-4.

We are not unmindful of the language in Judge Friday's order that plaintiff "have and recover" of the defendants or of the entries on the Judgment Docket. It suffices to say that we hold that they shall not deprive this minor of the rights to which he would have been entitled had he been an adult and thus not required to seek the court's approval of the release agreement. To hold otherwise would hardly be consistent with the duty of the courts, as the guardians of all infants, to exercise their equitable powers to protect the personal and property rights of infants.

For the reasons stated, the judgment from which plaintiff appealed is reversed.

Reversed.

HEDRICK, J., concurs.

BROCK, J., concurs in the result.