Blauvelt v. Landing , 68 N.C. App. 779 ( 1984 )

WEBB, Judge.

The question posed by this appeal is whether Louis Watkins, an employee of Capital City, is barred in his claim against Joseph Landing by a release signed by Capital City for all its claims arising from the accident. We hold that Mr. Watkins is not so barred. Capital City had no power to bar Mr. Watkins’ claim whatever release Capital City may have signed. It was error to grant the motion for summary judgment on Mr. Watkins’ claim against Joseph M. Landing.

The appellee contends that the release was for personal injury as well as for property damage and, for this reason, Mr. Watkins’ personal injury claim as well as Capital City’s property damage claim was released. It does not matter what claims were purportedly released. Mr. Watkins is not bound by it since he did not agree to it. We do not believe Battle v. Clanton, 27 N.C. App. 616, 220 S.E. 2d 97 (1975), cert. denied, 289 N.C. 613, 223 S.E. 2d 391 (1976); Bradford v. Kelly, 260 N.C. 382, 132 S.E. 2d 886 (1963); and McNair v. Goodwin, 262 N.C. 1, 136 S.E. 2d 218 (1964), relied on by the appellee, are applicable. Each of those cases involved some action by a party which would bar his claim. In this case, Mr. Watkins has taken no action which would bar his claim.

The appellee also argues that Capital City would be liable to Joseph Landing, if at all, under the theory of respondeat superior and that a valid release as to master or servant would also release the other. The appellee says that for this reason, Joseph Landing having released Capital City has also released Louis Watkins and the release is reciprocal so that Mr. Watkins is also barred. Mr. Watkins has not pled the release given by Capital City or otherwise attempted to take advantage of it. We do not believe he is barred by it.

We hold it was error to grant the motion for summary judgment.

Reversed and remanded.

Judges HILL and WHICHARD concur.