Smith v. South & Western Railroad
66 S.E. 435
N.C.
1909
Check Treatment
MANNING, J.,

after stating tbe case: Tbe only question presented for our consideration by tbe briefs and argument of counsel is tbe effect of tbe paper writing executed by tbe plaintiff on 30 August, 1909, to tbe construction company. Upon tbe facts presented, the decision of this Court in Brown v. Louisburg, 126 N. C., 701, approved in Raleigh v. Railroad, 129 N. C., 265, is decisive. If tbe construction company were an independent con-' tractor, it would seem clear tbat the railway company would not be liable; and tbe plaintiff, therefore, by bis agreement with tbe construction company, has bound himself not to sue tbe only party legally liable to him. Avery v. Railroad, 137 N. C., 130. Tbe only other theory of tbe liability of tbe railroad company *482 to the plaintiff is that the railroad company was the master and the construction company the servant or the railroad company, the principal, and the construction company the agent, doing its work within the scope of its agency. That they were not tort feasors would seem to be settled in Brown v. Louisburg, supra, in which case this Court said: “The*defendants, howeyer, were not .joint tort feasors. To make persons joint tort feastors they must actively participate in the act which causes the injury.” The railroad company had no active part, by encouragement, direction or control, in, the doing of the work in which plaintiff was injured. There was no allegation or suggestion that the construction company was not a capable servant, or that the instrumentalities selected for doing the work were not properly suitable and in general use and good condition. The statement by plaintiff that he sought to recover from the defendants as joint tort feasors is not sustained by the authority cited or by the evidence offered.

We next consider the theory of liability growing out of the relations of master and servant or as principal and agent. The principle underlying the liability of the master for the acts of his agent is very clearly and succinctly stated by Alderson, B., in Hutchinson v. Railroad, 5 Exch., 343: “The principle upon which a master is in general liable to answer for accidents resulting from the negligence or unskillfulness of his servant is that the act of his servant is in truth his own act. If the master is himself driving his carriage and, from want of skill, causes injury to a passer-by, he is, of course, responsible for that want of skill. If, instead of driving the carriage with his own hands, he employs his servant to drive it, the servant is but an instrument set in motion by the master. It was the master’s will that the servant should drive, and whatever the servant does in order to give effect to his master’s will may be treated by others as the act of the master. Qui facit per alium, facit per se.”

If the relation of master and servant existed, or the relation of principal and agent, the servant in one relation or the agent in the other relation did the careless and unskillful act which injured the plaintiff and was primarily liable for it, and upon the principle expressed in the maxim, Qui facit, etc., the master or principal would be liable. If this principle is invoked to impose liability, can it not also be invoked for protection? If the master is bound through his agent, can he not be released through his agent? If an act of negligence imposes liability, ought not an act of fidelity bring relief? This would seem to be obvious, except in those cases where the master actively participates in *483 the wrong and thereby makes bimself a joint tort feasor. Every doubt of the ultimate liability of the construction company for the injury to the plaintiff was removed when plaintiff offered in evidence the contract-, which expressly stipulated that the construction company should save harmless the railroad company from liability for such injuries. If the plaintiff should recover a larger sum from the railroad company, then, under the contract stipulation, the railroad company could recover from the construction company the judgment and expenses and costs. Such a result would be a complete destruction of the construction company’s rights under its contract with the plaintiff. We think this view is sustained by this language of Pearson, C. J., in Russell v. Adderton, 64 N. C., 417: “For which reason (the intention of the parties) the courts incline to adopt the construction which gives to the instrument the effect merely of a covenant not to sue, and the intention of the parties is carried out by allowing the creditor to take judgment at law, leaving the party who holds the covenant to his remedy in equity for a specific performance, by which he is fully protected, not only from paying any more directly, but, if there be sureties, by restraining the creditor from collecting any amount out of them, because that would subject him to their action and thus indirectly violate the covenant.” Under our present system, where law and equity, legal and equitable rights, are administered in the same action, his Honor, in the trial of this action, accomplished what Chief Justice Pearson declared could be done by a suit in equity.

After a careful consideration of the authorities effect in the elaborate brief of the learned counsel for the appellant, we are unable .to reach a different conclusion. The judgment of the court below is therefore

Affirmed.