Smith v. . Thompson

Clarkson, J. Did the court err in rendering judgment upon the pleadings in favor of the defendant? We think not. Plaintiff was injured in a motorcycle accident on 11 July, 1929. On 3 October, 1929, represented by her counsel, plaintiff settled all her *676 claims for damages against the operators of the motorcycle which struck her, receiving the sum of $2,400 in full compensation for all injuries resulting from said collision, or which might thereafter result therefrom. In consideration of said settlement and compensation, plaintiff and her husband executed a “General Release,” witnessed by plaintiff’s counsel and a notary public, in which plaintiff released P. D. Gattis and W. J. Andrews, operators of the motorcycle, from "any and all claims for damages of any hind or character whatsoever and all causes of action, claims and demands whatsoever which I ever had, now have, or may hereafter have by reason of personal injuries sustained by me on or about the 11th day of July, 1929, or by reason of any cause, matter or thing whatsoever, including all medical expenses.” Almost three years after the injury complained of, plaintiff brought this action, on 9 July, 1932, in forma pauperis, against defendant. The rule of law in actionable negligence cases of this kind for damages is well settled. In Ledford v. Lumber Co., 183 N. C., 614 (616-17), is the following: “In cases like the one at bar, if the plaintiff be entitled to recover at all, he is entitled to recover as damages one compensation— in a lump sum — for all injuries, past and prospective, in consequence of the defendant’s wrongful or negligent acts. These are understood to embrace indemnity for actual nursing and medical expenses and loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction (if he be entitled to recover at all) for loss of both bodily and mental powers, or for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury. And it is for the jury to say, under all the circumstances, what is fair and reasonable sum which the defendant should pay the plaintiff by way of compensation for the injury he has sustained. The age and occupation of the injured party, the nature and extent of his business, the value of his services, the amount he was earning from his business, or realizing from fixed wages, at the time of the injury, or whether he was employed at a fixed salary, or as a professional man, are matters properly to be considered. Rushing v. R. R., 149 N. C., 158. The sum fixed by the jury should be such as fairly compensates the plaintiff for injuries suffered in the past and those likely to occur in the future. The award is to be made on the basis of a cash'settlement of the plaintiff’s injuries, past, present, and prospective. Penny v. R. R., 161 N. C., 528; Fry v. R. R., 159 N. C., 362.” Murphy v. Lumber Co., 186 N. C., 746 (748); Cole v. Wagner, 197 N. C., 692 (698-9); Shipp v. Stage Lines, 192 N. C., 475; Campbell v. R. R., 201 N. C., 102 (108). In Lane v. R. R., 192 N. C., 287 (291-2), we find: “In Sears v. R. R., 169 N. C., 446, it is held that where there is some evidence that as the *677 result of a personal injury, which was alleged to have been negligently inflicted by the defendant on its employee, two surgical operations were performed, and that the second one was made necessary by reason of the defendant’s negligence and as a proximate result thereof, it is proper for the trial judge to refuse to instruct the jury that in no view of the case was the defendant liable for the additional suffering, etc., caused by the second operation. It has further been held that where the injured person has received unskillful treatment by a physician or surgeon, increasing the damages, defendant may be liable for such consequences where the person injured has used reasonable care in selecting the physician or surgeon. 17 C. J., 738, note 56, and cases cited.” In Sircey v. Rees’ Sons, 155 N. C., 296 (299), we find: “We cannot agree with the learned counsel that the plea of a release is technical and does not present a meritorious defense. Plaintiff thereby acknowledged full satisfaction of his claim, and be is entitled to have no more. Nor can we assent to the suggestion that a plaintiff should be allowed two satisfactions for one and the same demand. Such a doctrine would shock the moral sense and violate a cardinal maxim of the law, if not the defendant’s constitutional right.” At p. 302 : “A plaintiff is entitled to but one satisfaction of his cause of action, whether but one or many may be liable, or whatever the form of action may be.” Elmore v. R. R., 189 N. C., 658 (666-7); Scott v. Bryan, ante, 478 (480). In Holland v. Utilities Co., 208 N. C., 289 (292), it is said: “Both reason and justice decree that there should be collected no double compensation, or even over compensation, for any injury, however many sources of compensation there may be.” Plaintiff in an action for actionable negligence against P. D. G-attis and W. J. Andrews, joint tort-feasors, under the law in this jurisdiction could recover (Ledford case, supra), “as damages one compensation — in a lump sum — for all injuries, past and prospective, in consequence of defendant’s wrongful or negligent acts. These are understood to embrace indemnity for actual nursing and medical expenses,” etc. Plaintiff did not bring an action for actionable negligence, but in consideration of $2,400 made the release before mentioned. At the time this release was made, the plaintiff bad employed the defendant to treat her injuries. In law the physician’s charges were a part of any damage she may recover in an action for actionable negligence. In her release for $2,400, she assumed to pay as part of her settlement “including all medical expenses,” the physician’s charges. This obligation was a part of the settlement. In fact, in her pleadings, she says: “That said amount which the defendant claimed was due him for his professional services to that time and for the after care necessary in the treatment of her limb was paid out of the small recovery which she received.” *678 Courts will generally adopt parties’ construction of contract. Albert Pick & Co. v. Morehead Bluffs Hotel Co., 197 N. C., 110. Plaintiff construed the contract that part of the release settlement included medical expenses and paid the defendant physician out of the compromise settlement. In Edmonson v. Hancock (Ga.), 161 S. E. Rep., 114 (116), speaking to the subject, it is said: “The case of Martin v. Cunningham, 93 Wash., 517, ... is one in which the facts and pleadings were almost identical with those in the case at bar. In that case it appeared that the plaintiff bad been injured in a train wreck and was attended by a physician in the employ of the railroad company. After the plaintiff released the railroad company from all liability to him arising out of the injury, be sued the physician for alleged negligent treatment. In that opinion the Court said: ‘Conceding malpractice on respondent’s part, as charged by the complaint, we think appellant is precluded from a recovery against him. The railway company was liable not only for the injury and resulting suffering of the appellant, but also for the malpractice of the attending surgeon and for the expenses of medical attendance. Having that liability in view, the company settled with him, paying him a substantial sum for a release from further liability. At the date of the release the appellant bad already suffered from the alleged malpractice and bad employed another surgeon to remedy it, to whom be bad paid $500 for the service. These were all matters that could be enforced against the railway company under its liability for damages, and the settlement was clearly made with a view to covering all those elements of damages. They were known to exist by the parties to the release, and the settlement was made with reference to them. The release, having been made in full satisfaction of all existing claims, precludes the appellant from bringing a second action for malpractice against the surgeon, occupying somewhat the position of a joint tort-feasor, to recover double compensation for what be has already been satisfied. It is a well settled doctrine of the law that complete satisfaction for an injury received from one person in consideration of his release operates to discharge all who are liable therefor, whether they be joint or several wrongdoers,’ ” citing numerous authorities. Feinstone v. Allison Hospital (Fla.), 143 So., 251. The almost unanimous decisions in the nation are in accord with the position here taken. Plaintiff does not bring an action for fraud or mistake to set aside the release she signed, but has waited nearly three years before suing defendant for malpractice. In Pendergraft v. Royster, 203 N. C., 384 (393), it is said: “A doctor is neither a warrantor of cures nor an insurer.” *679 It may be that on plaintiff’s pleadings there was no actionable negligence charged against defendant, but defendant did not demur. On the whole record, we think plaintiff is estopped by her release from bringing this action. For the reasons given, the judgment of the court below is Affirmed.