Bowen v. Iowa National Mutual Insurance Company

155 S.E.2d 238 (1967) 270 N.C. 486

Fred J. BOWEN
v.
IOWA NATIONAL MUTUAL INSURANCE COMPANY.

No. 441.

Supreme Court of North Carolina.

June 20, 1967.

Deal, Hutchins & Minor, by Roy L. Deal and Fred S. Hutchins, Winston-Salem, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and J. Robert Elster, Winston-Salem, for defendant appellee.

PARKER, Chief Justice.

The payment of the judgment in the Cabarrus County action in favor of Bowen and Knitting Co. against Trucking Co. was authorized by G.S. § 1-239, and discharges the judgment. 3 Strong's N.C. Index, Judgments, § 47, p. 68. "The effect of the statute (C.S. 617, now G.S. § 1-239) is to make the clerk the statutory agent of the owner of the judgment, and not of the party making the payment." Dalton v. Strickland, 208 N.C. 27, 179 S.E. 20.

Bowen in the present action seeks to reach and apply to the payment of the judgment in the Forsyth County action in which Shipp, the agent of Trucking Co., was the defendant, the obligation of Iowa under its policy of automobile liability insurance, when Iowa has paid and discharged, by virtue of its obligation under this insurance policy, the judgment in the Cabarrus County action, in which Bowen recovered damages on his counterclaim for personal injuries against Shipp's principal, Trucking Co., a cause of action arising out of the same collision in which he recovered damages, which are unpaid, against the principal's agent Shipp.

The question here presented is whether the payment or satisfaction of plaintiff's Cabarrus County judgment against Trucking Co., the principal, on his counterclaim in the sum of $2,464 for personal injuries received by Bowen in the collision on 21 June 1961, entered at the February 1963 Civil Session of Cabarrus County, and paid by Iowa on 29 April 1963 operates as a satisfaction and a bar to Bowen's present action against Iowa to enforce payment of his judgment entered in his case in Forsyth County on 12 December 1961 for $15,000 for personal injuries against Shipp, the agent of Trucking Co., received in the same collision.

In the Cabarrus County action and in the Forsyth County action, there was a single tort: the negligence of Shipp as agent in operating the Ford truck of Trucking Co., his principal. The liability of Trucking Co. was based not on any personal fault, for there was none on the present record, but on the agency relationship which existed between Trucking Co. and its negligent agent Shipp. Trucking Co.'s liability was derivative and dependent entirely on the doctrine of respondeat superior. Because of this liability of the principal, it has been sometimes broadly assumed that the master was guilty of a tort in a personal sense. This is contrary to fact. In the case of joint tort-feasors, although there is a single damage done, there are several wrongdoers. The act inflicting injury may be single, but back of that, and essential to liability, lies some wrong done by each tort-feasor contributing in some way to the wrong complained of. It is said in White v. Keller, 242 N.C. 97, 86 S.E.2d 795: "Joint tort-feasors are those who act together in committing a wrong, or whose acts, if independent of each other, unite in causing a single injury." See Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; 86 C.J.S. Torts § 34, Joint and Several Liability. Although the principal is responsible for the tort of his agent under the doctrine of respondeat superior, there was nothing in the present situation fairly comparable to that of joint tort-feasors. McNamara v. Chapman, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188. See also Brown v. Town of Louisburg, 126 N.C. 701, 36 S.E. 166. Cases where there is some personal fault of the principal or master, of course, stand differently.

It is the general rule that, although judgments may be recovered against all persons participating in a single wrong, there can be only one full satisfaction or indemnity. McNair v. Goodwin, 262 N.C. 1, 136 S.E.2d 218. This principle applies where actions are brought against both principal and agent for the same tort. Leonard v. Blake, 298 Mass. 393, 10 N.E.2d 469.

Pinnix v. Griffin, 219 N.C. 35, 12 S.E.2d 667, was a civil action to recover damages for wrongful death. Griffin was an employee of Gate City Life Insurance Company. There was a judgment of nonsuit as to the corporate defendant entered at the conclusion of the evidence for plaintiff, and verdict and judgment against Griffin was $1,000. Plaintiff excepted to the judgment of nonsuit as to the corporate defendant, and appealed. In the Supreme Court the judgment of nonsuit as to the corporate defendant was reversed. When the case came on again for trial, the jury found by its answers to issues submitted to them that plaintiff's intestate's death was caused by the negligence of Griffin as alleged in the complaint, and that Griffin at the time was acting as a servant of the corporate defendant within the scope of his employment; that plaintiff's intestate by his own negligence did not contribute to his death, and awarded damages against the corporate defendant in the sum of $5,000. There was a judgment on the verdict, and the corporate defendant excepted and appealed. The second appeal is reported in 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164. The Court held, in part, that where a judgment for a negligent injury is recovered against the servant, the verdict on the issue of damages is the limit of any recovery against the master when he is sought to be held liable solely upon the principle of respondeat superior. The Court in its opinion, said in part: "The plaintiff can have but one satisfaction—payment of the damages caused by the wrongful act of Griffin. [Citing authority.] She cannot recover twice for the same wrong or, in other words, she cannot have two compensations for the same complete tort, but must abide the first recovery as her full satisfaction for the wrong [Citing authority.] Nor may she now reopen and recanvass the question, or assert that the act of Griffin inflicted greater damage than she recovered in the former trial. With that verdict she was then content. As to her, it is res judicata. [Citing authority.] Neither will she be permitted to allege that the former recovery was upon a wrong basis or in an inadequate amount; for if there was any error to her prejudice in the trial of that case she should then have excepted and had it corrected by an appeal. It is now too late to raise the question, as the judgment forecloses and estops her as to all issues determined on that hearing."

It is said in Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492:

"However, where the doctrine of respondeat superior is or may be invoked, the injured party may sue the agent or servant alone, and if a judgment is obtained against the agent or servant, and such judgment is not satisfied, the injured party may bring an action against the principal or master. In such case, however, the recovery against the principal or master may not exceed the amount of the recovery against the agent or servant. [Citing authority.] On the other hand, if the agent or servant satisfies the judgment against him or obtains a verdict in his favor, no action will lie against the principal or master."

In Brown v. Town of Louisburg, supra, the facts were these: A property owner in the town of Louisburg caused an excavation in the sidewalk in front of his building into which the plaintiff fell and was injured. Plaintiff brought an action against the property owner and the town of Louisburg to recover damages for personal injuries sustained by him in falling into this excavation. While the action was pending, plaintiff agreed in writing through his attorneys, for the consideration of $75, to enter a nonsuit and to release the property owner from any and all claims of plaintiff against him, by reason of the facts set forth in the complaint, and from any and all claims of every description which the plaintiff may have against the property owner. It was verbally agreed at the time of the execution of the agreement that the payment of the $75 was not made or accepted in full satisfaction of the injuries received, but simply to discharge the property owner. When the action came on for trial, the town claimed that it also was entitled to the benefit of the release. His Honor held otherwise. The town excepted. The jury rendered a verdict for $400 less $75 against the town. Judgment was entered upon the verdict, and the town appealed. The Court in its opinion said in part:

"The defendants were not, however, joint tort feasors. To make persons joint tort feasors, they must actively participate in the act which causes the injury. * * *

"The real question in the case is this: Upon which of the defendants is the ultimate liability resting as between themselves. The plaintiff can, of course, sue either one; but which one of the defendants is liable to the other for the damages which the plaintiff would be entitled to recover for the injury which he has sustained on account of their negligence? We think that Ponton would be liable to the town, and that any recovery which might be made against the town could be ultimately recovered back from Ponton. [Citing authority.]

* * * * * *

"* * * His Honor should have instructed the jury that upon the evidence the plaintiff could not recover."

This case has been repeatedly cited and approved in our Reports. See Shepard's Citations.

Leonard v. Blake, supra, held, as succinctly and correctly summarized in headnote six in the North Eastern Reporter:

"A plaintiff, suing a mother and her daughter in separate actions for death caused by negligent operation of mother's automobile by daughter, could prosecute both actions to final judgment, but there could be satisfaction for damages in one action only."

In McNamara v. Chapman, supra, the Court held that a judgment against a solvent master for tort on the servant is a bar to a suit by the same plaintiff against the same servant for the same cause of action, although it has not been satisfied.

The case of Marange v. Marshall, Court of Civil Appeals of Texas, Corpus Christi, rendered 31 March 1966, and reported in 402 S.W.2d 236, is apposite. A rehearing in this case was denied 28 April 1966. The facts stipulated by the parties show that in this case John P. Marange and wife Pauline brought suit for damages against John Marshall for personal injuries sustained by Mrs. Marange, when a car in which she was riding with her husband as driver was in a collision with a pickup truck driven by Marshall. Marshall was operating the pick-up truck in the usual course of his employment as an employee of Lew Williams Chevrolet, Inc. Prior to the filing of this suit, the Maranges as plaintiffs had instituted an action under the doctrine of respondeat superior against Marshall's employer, Lew Williams Chevrolet, Inc., based on the same accident. This first suit had gone to trial before a jury, and as a result of the verdict, judgment was rendered for the plaintiffs for the damages found. Defendants appealed. The judgment was affirmed. Marange v. Lew Williams Chevrolet, Inc., Tex.Civ. App., 371 S.W.2d 900. The full amount of the judgment was paid into the registry of the court and was also tendered in cash to the plaintiffs, but was refused by them. The suit against the employer's servant followed. The trial court sustained employee's motion for summary judgment, and an appeal was taken. The Court of Civil Appeals held that the doctrine of res judicata barred suit by injured parties against employee for injuries sustained in collision where prior judgment in injured parties' favor against employer had resulted in a tender of judgment by employer. Relationship of employer and employee was not in dispute and the former action was purely derivative and entirely dependent upon the doctrine of respondeat superior. The judgment of the trial judge was affirmed. The Court, in its opinion, said in part:

"In a well and carefully prepared opinion with facts almost identical to the case at bar the New Hampshire Supreme Court in the case of McNamara v. Chapman, supra, firmly and in thoughtful and well-reasoned language, rejects a similar position taken by the appellants here. The court in McNamara held, that the second action filed against the employee alone could not be maintained, by reason of the prior judgment. This decision as a leading case is reported in 123 A. 229, 31 A.L.R. 188, and has been cited with approval at least in ten states."

In Stone v. Carolina Coach Co., 238 N.C. 662, 78 S.E.2d 605, the driver of a bus sued the owner and operator of a truck for personal injuries sustained when the bus collided with a truck. A consent judgment was entered under which the bus driver recovered a stipulated sum. Thereafter, the truck driver instituted suit against the bus company to recover damages to his truck occasioned in the same collision. The Court held that the bus company could be held liable solely under the doctrine of respondeat superior, and, therefore, the judgment releasing the bus driver from further liability is a bar to recovery by the truck owner against the bus company.

The Court held in Ingram v. Nationwide Mutual Insurance Co., 258 N.C. 632, 129 S.E.2d 222, where one of two tort-feasors is liable to the injured party for the active negligence of the other solely under the doctrine of respondeat superior, the tort-feasor whose liability is secondary, upon payment by him of the injured party's recovery, is entitled to indemnity against the primary wrongdoer.

This is stated in the agreed statement of facts:

"By a letter dated June 7, 1962, prior to the trial of the Cabarrus County action and prior to the institution of the present action, Iowa National Mutual Insurance Company, through its attorney, Ralph M. Stockton, Jr., tendered for a ten-day period to Fred S. Hutchins, Sr., as attorney for Fred J. Bowen, the amount of $5,000.00 in settlement of the Forsyth County judgment in favor of Fred J. Bowen against Johnny C. Shipp. A true copy of said letter is attached hereto and incorporated herein and fully set out in this paragraph. Said tender was not accepted by Fred J. Bowen."

By rejecting this offer Bowen elected to pursue his counterclaim for personal injuries in the Cabarrus County action and to obtain satisfaction for his injuries in that action. The judgment in the Cabarrus County action, in which Bowen received $2,464 as damages for his personal injuries received in the same collision which was the basis for his Forsyth County action resulting in a judgment in his favor against Shipp, has been paid in full by Iowa into the office of the clerk of the Superior Court of Cabarrus County. The clerk of the Superior Court of Cabarrus County disbursed to the attorneys of record for Bowen the amount of said judgment and costs in payment and satisfaction of the judgment entered in this action in favor of Bowen and Knitting Co. Bowen did not appeal. Although separate judgments may be rendered against the agent and his principal arising out of the same cause of action, there can be but one satisfaction of the judgments arising on the same cause of action, and this rule has been applied even where the judgments differed in amount when the two judgments are for compensatory damages. This is true because Bowen's cause of action is indivisible, and the satisfaction of the judgment by the principal operates to extinguish his judgment in the Forsyth County action against the agent, particularly when Bowen rejected the offer of the payment of $5,000 as aforesaid and elected to pursue his cause of action against the principal and enforce the judgment obtained against him. Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260; Thomas' Adm'r v. Maysville St. Ry. & Transfer Co., 136 Ky. 446, 124 S.W. 398; Irwin v. Jetter Brewing Co., 101 Neb. 409, 163 N.W. 470; Sarine v. Maher, 187 Misc. 199, 63 N.Y.S.2d 241; Larson v. Anderson, 108 Wash. 157, 182 P. 957, 6 A.L.R. 621; 30A Am.Jur., Judgments, § 1007; 2 Freeman on Judgments, 5th Ed., by Tuttle, § 1126; 49 C.J.S. Judgments § 575; Restatement, Torts, § 886, Comment, a.

Although it is not necessary for us in reaching a decision in this case to approve all the trial court's conclusions of law, we approve this conclusion, that the acceptance of satisfaction of the Cabarrus County judgment by Bowen constitutes a bar to recovery by him in the present action against Iowa, and that conclusion supports the judgment that plaintiff recover nothing from the defendant Iowa.

The judgment of the lower court is

Affirmed.