JAMES FOSTER KEITH v. GARLAND D. GLENN, SR., 262 N.C. 284

RodmaN, J. The basic question presented by plaintiff’s appeal is this:’ May plaintiff maintain his action against defendant and at the same time rely on the release given by defendant to defeat the counterclaim? Unless we are to depart from logic and overrule . prior decisions of this Court, the answer must be “No.” A consummated agreement to compromise and settle disputed claims is conclusive and binding on the parties to the agreement and those who knowingly accept its benefits. Bradford v. Kelly, 260 N.C. 382, 132 S.E. 2d 886; Cannon v. Parker, 249 N.C. 279, 106 S.E. 2d 229; Houghton v.

Harris, 243 N.C. 92, 89 S.E. 2d 860; Snyder v. Oil Co., 235 N.C. 119, 68 S.E. 2d 805; 11 Am. Jur. 272-3; 15 C.J.S. 747. Plaintiff argues this sound legal principle should not be applied in-controversies between insured motorists. He has, he says, purchased and paid for insurance which will compensate those he may injure. A payment by his insurance carrier for injuries he inflicts should' not impair his right to compensation for injuries he sustains. The contention would have merit if his insurance provided for payment irrespective of fault or liability. It does not. It is liability, not accident insurance.

Plaintiff’s insurance carrier was under no obligation to pay unless plaintiff was legally liable. The insurance carrier had the right to compromise and settle claims asserted against its insured. However, a settlement, made without insured’s assent or subsequent ratification, while protecting the insurer from further claims, would not bind the insured. Bradford v. Kelly, supra; Phillips v. Alston, 257 N.C. 255, 125 S.E. 2d 580; Lampley v. Bell, 250 N.C. 713, 110 S.E. 2d 316; Beauchamp v. Clark, 250 N.C. 132, 108 S.E. 2d 535.

An insured motorist, who refuses to ratify a settlement made by his insurer, is, if adjudged liable to the party executing the release, entitled to credit on his liability for the payment made by his carrier. Bradford v. Kelly, supra; Ramsey v. Camp, 254 N.C. 443, 119 S.E. 2d 209; Holland v. Utilities Co., 208 N.C. 289, 180 S.E. 592. Recognizing this sound principle, defendant, when he asserted his counterclaim, offered to credit the amount he claimed as fair compensation with the payment made by plaintiff's insurance carrier. He did not plead settlement.

His claim for additional compensation gave plaintiff the option to ratify and approve the action of his insurer in procuring a release for him, or to reject the purported settlement. Plaintiff, before replying, moved to strike the counterclaim because, he asserted, it was a mere sham without foundation in fact. We are unable to agree with this contention. If defendant’s factual allegations made under the sanctity of his oath are true, the collision was caused by plaintiff’s negligence.

In the collision defendant sustained a broken left hand; his elbows and knees were injured; he had a blow on the head; he was unable to work for eight weeks and, because of that inability, he lost $400 income. He incurred medical expenses. His automobile was, “badly battered, twisted, torn up and caved in.” We cannot hold, as a matter of law, that $1,250 is in fact full compensation for the injuries defendant says he sustained. Therein is the difference between this case and Scott v. Meek, 88 S.E. 2d 768, relied on by plaintiff in support of his motion to strike.

When the court overruled the motion to strike, plaintiff was called upon to elect the route he would take. Bradford v. Kelly, supra. He could not follow paths leading in opposite directions. He deliberately elected to plead: “That the receipt of the sum of $1,250.00 and the execution of said release was in compromise and settlement of a disputed claim * * and the execution of the aforesaid release constitutes a bar to the counterclaim now being asserted by defendant.” He has deliberately elected to ratify his insurance carrier’s settlement with defendant.

He must, when he accepts the benefits of the settlement, bear its burdens. As Dean Mordecai said in his Law Lectures: “The principal cannot of his own authority ratify a part and repudiate the rest, he cannot take the rose without the thorns.” Lawson v. Bank, 203 N.C. 368, 166 S.E. 177; Phillips v. Alston, supra; Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488; Jones v. Bank, 214 N.C. 794, 1 S.E. 2d 135; Wilkins v. Welch, 179 N.C. 266, 102 S.E. 316; Rudasill v. Falls, 92 N.C. 222.

In view of the conclusion reached with respect to the crucial question in the case, plaintiff’s further assignments of error require no discussion; nor need we consider defendant’s appeal taken merely to protect his rights if the judgment on plaintiff’s appeal should be reversed. Affirmed.