Fowler v. McLean

226 S.E.2d 867 (1976) 30 N.C. App. 393

Russell Dean FOWLER
v.
Paul McLEAN.

No. 7519SC1078.

Court of Appeals of North Carolina.

August 4, 1976.

Ottway Burton by Millicent Gibson, Asheboro, for plaintiff.

Henson, Donahue & Elrod by Daniel W. Donahue, Greensboro, for defendant.

BROCK, Chief Judge.

"``[W]here an insurance carrier makes a settlement in good faith, such settlement is binding on the insured as between him and the insurer, but . . . such settlement is not binding as between the insured and a third party where the settlement was made without the knowledge or consent of the insured or over his protest, unless the insured in the meantime has ratified such settlement.' (Citation omitted.) Such consent or ratification constitutes an admission of his liability by the insured. (Citation omitted.)" McKinney v. Morrow, 18 N.C.App. 282, 196 S.E.2d 585 (1973), cert. den. 283 N.C. 665, 197 S.E.2d 874 (1973).

Plaintiff contends that his withdrawal of his plea of the release as a bar to defendant's counterclaim placed the case back in a posture as though no such plea had been made. This argument has been answered as follows:

"This leaves us with the proposition of whether the withdrawal by the plaintiff of the ``further reply' constituted a revocation of the ratification. The answer is no. In Norwood v. Lassiter, 132 N.C. 52, 43 S.E. 509, it is said: ``When a party has the right to ratify or reject, he is put thereby to his election, and he must decide, once and for all, what he will do; and when his election is once made it immediately becomes irrevocable. This is an elementary principle. Austin v. Stewart, 126 N.C. 525, 36 S.E. 37.' See also Breckenridge, ``Ratification in North Carolina', 18 N.C.L.Rev. 308. Although the ``further reply' had been withdrawn as a pleading, it was proper for Judge Bundy to consider it in making his findings of fact and conclusions of law. Davis v. Morgan, 228 N.C. 78, 44 S.E.2d 593 (1947)." White v. Perry, 7 N.C.App. 36, 171 S.E.2d 56 (1969).

The case of Bongardt v. Frink, 265 N.C. 130, 143 S.E.2d 286 (1965), is readily distinguishable from the case sub judice. In that case, after the court permitted the plaintiff to withdraw the reply pleading the release, the defendant did not amend its answer to allege the filing of the reply as a plea in bar. In the present case the defendant did answer with a specific plea of plaintiff's ratification of the release as a bar to plaintiff's action.

Affirmed.

HEDRICK and CLARK, JJ., concur.