Howard v. . Plumbing Co.

ACTION for damages. These issues were submitted:

1. Was the plaintiff injured by the negligence of the defendant, as alleged? Answer: Yes.

2. Did plaintiff, by her own negligence and acts, contribute to her injury? Answer: No.

3. Did the release of plaintiff for a valuable consideration to E. W. Ayers from liability also relieve the defendant from liability? Answer: No.

4. What damage, if any, is the plaintiff entitled to recover? Answer: $750.

From the judgment rendered, the defendant appealed. Although there are twenty assignments of error, the merits of this appeal can be passed on in considering the motion to nonsuit.

It is admitted that E. W. Ayers is the owner and proprietor of a large store in Washington, North Carolina, in which he conducts a mercantile business, and that plaintiff was his employee in the millinery department. Ayers employed defendant to send a workman to his store for the purpose of descending into the cellar and putting in a water pipe. The only entrance to the cellar, which was dark, was a trap-door in the floor of the store, over which a movable counter stood. From this trap-door a ladder was used to descend into the cellar. The counter was moved, the trap-door opened, and the workman, one Cherry, sent (226) by defendant to fix the water pipe, descended with his lantern and tools into the cellar and went to work. The trap-door was not closed after Cherry descended into the cellar, and the plaintiff in passing by fell in and was injured.

There are two reasons why the nonsuit must be sustained.

1. There is no evidence of negligence upon the part of the defendant. It obeyed the call and sent one of its workmen to Ayers' store, as directed. It was Ayers' duty to conduct the workman to the place where the work was to be done. It was Ayers' store and he had complete control and management of it. He knew the way into the cellar, and the workman did not. Ayers was offered as a witness for plaintiff, and admits that he undertook this duty. He directed one of his clerks to show Cherry the way into the cellar through the trap-door.

When Ayers delegated this duty to his clerk he was responsible for the manner in which he discharged it. Tanner v. Lumber Co., 140 N.C. 475.

When the workman lighted his lantern and descended by the ladder into the cellar it was the clerk's duty to either close the door or, if necessary to leave it open while the work was being done, to protect it so those passing by were not likely to fall into the cellar.

The evidence for plaintiff is not aided any by that offered by defendant. According to Cherry's evidence, Ayers told him that one of his clerks would show him the way into the cellar; that the clerk opened the trap-door and told him to enter, which he did; that he then told the clerk he would be in the cellar an hour or two, and that the clerk could shut the trap-door.

Taking the evidence in its most favorable view for plaintiff, we are unable to see any negligent act upon the part of the defendant.

The proximate cause of her injury was the neglect of Ayers' agent, after conducting the workman (as directed by Ayers) into the cellar and, after the workman was down in the cellar, in failing to close the trap, as it was his duty to do.

(227) 2. Assuming that this defendant is jointly liable with Ayers to the plaintiff, she has released Ayers for a valuable consideration paid to her by him, and that releases this defendant.

She cannot be allowed to recover two compensations for the one injury. If she recovers of one she cannot recover of the other. It is immaterial, so far as plaintiff is concerned, to consider which joint tort feasor is primarily liable.

The question of primary and secondary liability is for the offending parties to adjust between themselves. The injured party has his remedy against either. Dillon v. Raleigh, 124 N.C. 188; Buswell Personal Injuries, sec. 190.

It is well settled that a release of one or more joint tort feasors executed in satisfaction for an injury is a discharge of them all, on the ground that the party can have but one satisfaction for his injury. 24 A. E., 306, where cases from nearly all the American courts are collected.Brown v. Louisburg, 126 N.C. 701; Burns v. Womble, 131 N.C. 173.

Citing a wealth of authority, English and American, Judge Cooley says: "It is to be observed in respect to the point above considered, where the bar accrues in favor of some of the wrongdoers by reason of what has been received from or done in respect to one or more others, that the bar arises not from any particular form that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent. Therefore, if he accepts the satisfaction voluntarily made by one, that is a bar to all. And so a release of one releases all, although the release expressly stipulates that the other defendants shall not be released. And this rule is held to apply even though the one released was not in fact liable. It does not lie in the mouth of such a plaintiff to say he had no cause of action against one who paid him for his injuries, for the law presumes that the one who paid committed the trespass and occasioned the whole injury."

The release in question is set out in the record and its execution is admitted by the plaintiff in her testimony. It purports to release and discharge Ayers on account of this injury and is based upon a valuable consideration, and it is not contended that it was secured by fraud.

Upon practically all the authorities, this act of plaintiff (228) released this defendant as well as Ayers.

We are therefore of opinion that in no view of the evidence can the plaintiff recover.

The motion to nonsuit is sustained and the action is dismissed.

Reversed.

Cited: Sircey v. Rees, 155 N.C. 300.