Jones v. Pettiford , 24 N.C. App. 546 ( 1975 )

ARNOLD, Judge.

Appeal Of James Otis Jones

Plaintiff contends that the trial court erred in directing a verdict against him. Without passing on the merits of his contentions with respect to the issue of contributory negligence, we hold that plaintiff’s claim against defendants Ramsey is barred by his plea of settlement with James Ramsey.

Although the trial court did not rule on defendants’ motion for judgment on the pleadings, an order granting the motion would have been proper. By alleging as a plea in bar to the counterclaim of defendants Ramsey that James Ramsey had released plaintiff from any and all claims arising out of the accident, plaintiff ratified the settlement. Keith v. Glenn, 262 N.C. 284, 136 S.E. 2d 665; White v. Perry, 7 N.C. App. 36, 171 S.E. 2d 56. This bars his claim against James Ramsey. See McNair v. Goodwin, 262 N.C. 1, 136 S.E. 2d 218. Since his claim against William Ramsey is based solely upon a theory of derivative liability, his claim against William Ramsey also is barred. See May v. R. R., 259 N.C. 43, 129 S.E. 2d 624; Pinnix v. Griffin, 221 N.C. 348, 20 S.E. 2d 366.

The judgment of the trial court dismissing the complaint is affirmed.

Appeal Of William D. Ramsey

Defendant William Ramsey contends that the trial court erred in directing a verdict against him on his counterclaim for property damage. The court based its ruling on the release given by James Ramsey. His father, William Ramsey, argues that this release is not binding on him, and we agree. Nowhere in the record does it appear that William D. Ramsey was a party to the settlement of his son’s claim for personal injuries. He is not bound by its terms. See generally 2 Strong, N. C. Index 2d, Compromise and Settlement, § 2, pp. 162-63. It was error to grant plaintiff’s motion for directed verdict as to him. The order of the trial court dismissing his counterclaim is reversed.

Affirmed as to appeal of plaintiff.

Reversed as to appeal of defendant William D. Ramsey.

Judges Vaughn and Martin concur.