Bell v. Hankins, 382

• Decision Date: 19 November 1958
• Docket Number: No. 382,382
• Citation: 105 S.E.2d 642,249 N.C. 199
• Parties: Harold L. BELL, Administrator of the Estate of Marcla Jeanette Bell, Deceased, v. J. Banks HANKINS.
• Court: North Carolina Supreme Court

Page 642

105 S.E.2d 642

249 N.C. 199

Harold L. BELL, Administrator of the Estate of Marcla

Jeanette Bell, Deceased, v. J. Banks HANKINS.

No. 382

Supreme Court of North Carolina.

Nov. 19, 1958

Hall & Thornburg, Sylvia, for plaintiff-appellant.

Charles W. Mauze, Walser & Brinkley, Lexington, for defendant-appellee.

DENNY, Justice.

The question posed for our consideration and determination is simply this: Where a plaintiff institutes an action to recover damages for the wrongful death of his intestate against persons alleged to be solely responsible for her injuries and death and thereafter the action is compromised by the entry of a consent judgment for a substantial sum, is said judgment a bar to the plaintiff's right to maintain a subsequent action for the wrongful death of his intestate against a physician or surgeon for negligent treatment of the original injuries?

The right to maintain an action to recover damages for the wrongful death of a human being, occasioned by the negligent or other wrongful act of another, did not exist at common law. Colyar v. Atlantic States Motor Lines, 231 N.C. 318, 56 S.E.2d 647; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922; Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889; 16 Am.Jur., Death, section 44, page 35. The right to maintain such an action is given by statute, patterned after Lord Campbell's Act, passed in England in 1846, our statute being G.S. § 28-173. However, we know of no statutory authority or judicial decision which authorizes a party to maintain a second cause of action for wrongful death, after such party has brought an action therefor bottomed on the alleged negligence of the joint tort-feasors who caused the original injuries and has obtained a judgment or made a compromise settlement in his favor with one or more of the joint tort-feasors in the first action.

It is said in 16 Am.Jur., Death, section 151, page 103, 'It is frequently held that statutes authorizing an action for damages for wrongful death contemplate only one cause of action for damages for the death of a person and that, in the absence of fraud, if an action is brought and a judgment recovered by any of those entitled to sue, the judgment is conclusive upon other persons and the right given by the statute is exhausted.'

It is likewise said in 25 C.J.S. Death § 47(a), page 1144, 'In the absence of statute, a release or compromise and settlement with one of the several wrongdoers is a bar to an action for death against the others.'

Furthermore, a personal representative has the right to negotiate and compromise a statutory cause of action for wrongful death. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438.

The weight of authority in this country is to the effect that a general release executed in favor of the one responsible for the plaintiff's original injury precludes an action against the physician or surgeon for damages incurred by the negligent treatment of the injury. See 40 A.L.R.2d Annotation--Physician--Original Tortfeasor--Release, page 1079, where the authorities from twenty-one jurisdictions are collected, including North Carolina.

The case of Smith v. Thompson, 210 N.C. 672, 188 S.E. 395, 397 cited and relied upon by the defendant, seems to support his position. There, plaintiff had been injured in a motorcycle accident and had given the driver and owner a release which expressly covered medical expenses in consideration of payment to her of a stated sum of money. She then brought suit against the physician who had treated her for malpractice, in which suit judgment was entered on the pleadings. Upon defendant's plea that the release barred any action against him, upon appeal to this Court the ruling of the lower court was affirmed. This Court said: 'The rule of law in actionable negligence cases of this kind for damages is well settled. In Ledford v. Valley River Lumber Co., 183 N.C. 614, 616, 617, 112 S.E. 421, 423, 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 * * *.' In Sircey v. Hans Rees' Sons, 155 N.C. 296, 299, 71 S.E. 310, 311, we find: * * * \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.' ' The Court also quoted inter alia from Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E. 114, wherein the Georgia Court was quoting from Martin v. Cunningham, 93 Wash. 517, 161 P. 355, L.R.A. 1918A, 225, '\* * * 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."' [40 Ga.App. 587, 151 S.E. 117.]

In Lane v. Southern R. Co., 192 N.C. 287, 134 S.E. 855, 857, 51 A.L.R. 1114, Connor, J., speaking for the Court, said: 'In the case of torts, the general rule is that the wrongdoer is liable for any injury which is the natural and...