Conley v. Hill.
| Decision Date | 05 June 1934 |
| Docket Number | (CC 497) |
| Citation | 115 W.Va. 175 |
| Court | West Virginia Supreme Court |
| Parties | Joseph Conley v. David H. Hill et al. |
Where neglig-ehce is relied on, it must be pleaded in accordance with the general rules governing that subject.
a release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties at the time of its execution.
Where a person has been injured by the wrongful act of another, a dismissal with prejudice of his action against the tortfeasor bars any subsequent claim against a physician called to treat the injury for acts of malpractice occurring prior to the institution of the action.
Case Certified from Circuit Court, Kanawha County.
Action by Joseph Conley against David H. Hill and others. Demurrers to the declaration and the replication were overruled, and demurrers to the special pleas were sustained, and the rulings certified for review.
Affirmed in part; reversed in part; cause remanded.
Lily & Lilly, for plaintiff.
Steptoe & Johnson and Stanley C. Morris, for defendants.
Woods, President:
This certificate from the circuit court of Kanawha county involves the sufficiency of a declaration, certain special pleas and a special replication. The circuit court overruled the demurrers to the declaration and the replication, and sustained the demurrers interposed to the special pleas.
The plaintiff, who suffered a fracture of one of the bones in his left leg on December 31, 1931, seeks to recover damages to the extent of $15,000.00 for an aggravated condition alleged to be due to the failure of the Kanawha Valley Hospital, by and through its physicians and nurses, and a certain physician, David H. Hill, who is connected therewith, to exercise due care. The action was instituted September 3, 1932.
That the declaration is insufficient is apparent. It is based primarily upon the averment of mere legal conclusions, and is signally lacking in its averment of the ultimate facts necessary to apprise the defendants of the negligence complained of and to enable them to prepare their defense. No attempt is made to point out any specific acts of omission or commission giving rise to the claim for damages, nor to indicate the nature or extent of the resultant injury. It is a fundamental rule that a declaration charging malpractice, as any other declaration based on negligence, must set forth in plain and concise language facts from which appear a duty resting upon the defendant to use proper care under the circumstances; negligence in the exercise of that duty; and consequent injury to plaintiff as a proximate result of such negligence. Gorsuch v. Woolworth & Co., 104 W. Va. 98, 139 S. E. 472; Owen v. Appalachian Power Co., 78 W. Va. 596, 89 S. E. 262; Phenix Fire Ins. Co. v. Virginia-Western Power Co., 81 W. Va. 298, 94 S. E. 372; Hannum v. Hill, 52 W. Va. 166, 43 S. E. 223; Poling v. Ohio River R. Co., 38 W. Va. 645, 18 S. E. 782. The demurrer to the declaration should have been sustained.
The defendants, in addition to a plea to the general issue, interposed their special pleas Nos. 1 and 2, which were based on a release (bearing date January 19, 1932) in favor of the original wrongdoers, which release the defendants claim (citing Mier v. Yoho, 114 W. Va. 248, 171 S. E. 535) extinguished any right of action the plaintiff then had, or thereafter may have acquired, against them, including aggravation of the injury, due to malpractice by a physician.
The release, which is set out in extenso in special plea No. 2, after reciting the receipt of a consideration, purports to "remise, release and forever discharge the said Ralph Horton and Betram Horton (the original wrongdoers), * * * of and from all * * * actions, causes of action, suits, * * * and liability whatsoever, both in law and equity, or which may result from the existing state of things, more especially in consequence of an accident occurring December 31, 1931, in South Charleston, West Virginia, on any and all loss or injury sustained by me or which hereafter may be sustained by me by reason of said accident, and from all claims I now have, or ever had, from the beginning of the world to the day of the date of these presents."
In view of the foregoing we would be warranted, under the law, in presuming that the injured party had considered not only his condition at the time of the execution of the release, but the probable consequences of the injury as well, such as pain and suffering, loss of time, medical attendance and support during his anticipated disablement, and such permanent injury and con- tinuing disability as might naturally result from the injury. "Knowledge of injuries which may develop in the future from the accident is not necessary to support an intention to release all liability for the result of such accident,...
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Thornton v. Charleston Area Medical Center
...damages inflicted by the physician or hospital. 4. The case of Mier v. Yoho, 114 W.Va. 248, 171 S.E. 535 (1933); Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934); and Markarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949) are overruled insofar as those decisions adopted a conclusive pres......
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Woodrum v. Johnson
...consistently been upon giving full effect to the terms of settlement agreements. As we stated in syllabus point two of Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934), overruled on other grounds, Thornton v. Charleston Area Med. Ctr., 158 W.Va. 504, 213 S.E.2d 102 (1975), "[a] release or......
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Mcelroy Coal Co. v. Schoene
...damages covers only those items that are within the ordinary contemplation of the parties . As we stated in Syllabus Point 2 of Conley v. Hill , 115 W.Va. 175, 174 S.E. 883 (1934), overruled on other grounds, Thornton v. Charleston Area Medical Center , 158 W.Va. 504, 213 S.E.2d 102 (1975) ......
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Makarenko v. Scott
...of authority and sound reason, as well as the holdings of this Court in Mier v. Yoho, 114 W.Va. 248, 171 S.E. 535, and Conley v. Hill, 115 W.Va. 175, 174 S.E. 883, and justify the conclusion that, as the employer of the plaintiff is relieved from liability for the original injury received b......