Keown v. Young

• Decision Date: 11 January 1930
• Docket Number: 29,069
• Citation: 129 Kan. 563,283 P. 511
• Parties: W. H. KEOWN, Appellant, v. R. CLAUDE YOUNG, Appellee
• Court: Kansas Supreme Court

283 P. 511

129 Kan. 563

W. H. KEOWN, Appellant, v. R. CLAUDE YOUNG, Appellee

No. 29,069

Supreme Court of Kansas

January 11, 1930

Decided January, 1930.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADING--Judgment on Pleadings--Construction on Appeal. When judgment is rendered on the pleadings any facts controverted by the pleadings must be considered on appeal as alleged by the party against whom the judgment is rendered.

2. DAMAGES -- Extended Injury Through Negligence of Physician -- Liability. When one sustains personal injuries because of the negligence of another and uses due care in selecting a physician to treat his injuries and in following the advice and instructions of the physician throughout the treatment, and a poor result is obtained because of the negligence of the physician, the law regards the negligence of the one who caused the original injury as the proximate cause of the damages flowing from the negligence of the physician and holds him liable therefor.

3. RELEASE--Who Entitled to Benefit--Physician Negligently Treating Injury. When one sustains personal injuries by the negligence of another and settles his claim for damages against such party, and executes to him a release and discharge "of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injuries," such release covers and includes a claim for injuries resulting from the negligence of a physician called by the injured party to treat his injuries when there is no claim of a lack of due care in selecting a physician or in following his advice with respect to the treatment.

L. D. Moore, of Winfield, and C. L. Swarts, of Arkansas City, for the appellant.

Hattie Franey, of Arkansas City, J. A. McDermott and S. C. Bloss, both of Winfield, for the appellee.

Harvey J. Jochems, J., not participating.

OPINION

HARVEY, J.

This is an action for malpractice against a physician and surgeon who treated plaintiff for injuries sustained by him as a result of his being struck by a locomotive engine. As a bar to the action defendant pleaded that plaintiff had previously sued the railway company for his injuries and had settled that action. Plaintiff's reply contained a general denial, but in it plaintiff admitted the filing of the former action, the settlement of it, and the execution of the release referred to in the answer. Defendant then moved for judgment on the pleadings. This motion was sustained, and plaintiff has appealed.

The sole question before us is whether the damages now sought to be recovered were claimed, or could have been claimed, in the former action, and were therefore settled by the settlement of that case. This must be determined by the pleadings, which disclose substantially the following: On October 23, 1924, plaintiff was driving his truck along a street of Arkansas City, and at a point where the street crosses the industrial track of the St. Louis-San Francisco Railway Company one of the engines of the railway company struck the truck which plaintiff was driving, seriously injuring the plaintiff. Immediately after the casualty plaintiff was taken to the hospital, and the defendant was employed to treat him. The pleadings contain conflicting allegations as to who employed defendant for that purpose. Plaintiff alleges that he employed the defendant, while the defendant in his answer alleges that the railway company employed him. Since the judgment was rendered against plaintiff on the pleadings, we must accept the allegations of plaintiff's petition on any matter controverted by the pleadings.

Plaintiff was in the hospital for treatment for some time and was discharged from there in 1924, the exact date not being given in the pleadings. On April 29, 1925, plaintiff filed an action against the St. Louis-San Francisco Railway Company in which he charged negligence on behalf of the railway company which caused his injury, and as to the extent of his injury alleged:

". . . that his right leg was crushed and mangled between the hip and knee, the bones thereof being driven through the flesh and skin; that his said right leg was further strained, bruised and skinned from the knee down to and including the foot thereof; that his hips and back were bruised and suffered injury to his internal organs and especially his kidneys; that he suffered a severe shock to his nervous system; that he endured great physical and mental pain and suffering; that the bruises and lacerations of his said leg below the knee and on the foot have developed ulcers; that he has lost the partial use of his said right foot, all of which injuries resulting from the acts of the defendant aforesaid."

And further alleged:

"That at the time of said injuries plaintiff was a healthy and able-bodied man -- years old, earning a weekly wage of $ 30 per week; that by said injuries hereinbefore described he has been permanently injured in health and ability to earn; that he has been put to great expense in doctors' fee, hospital bills, nursing charges and other incidental charges, has suffered loss of time and income; that he has endured great and excruciating physical and mental pain and suffering; that from the date of said injury to the filing of this petition he has lost in earnings $ 572; that his expense for doctors' services is $ 200; that his expenditures for hospital services is $ 250; that for nursing his expenses were $ 100; for incidental expenses $ 100, or a total expense and loss of wage to this date of $ 1,222; that for his permanent bodily injuries, his physical and mental pain and suffering he has been hurt and damaged in the further sum of $ 10,000; that all of the aforesaid losses and expenditures, hurts and damages were and are the direct and proximate result of the negligent acts of the defendant, its agents, servants and employees as hereinbefore set out, and for which plaintiff is entitled to recover from the defendant, in the sum of eleven thousand two hundred twenty-two dollars."

The railway company removed the action to the federal court. On February 25, 1926, plaintiff and the railway company compromised that case and the plaintiff executed a general release which recited that whereas plaintiff was injured October 23, 1924, on a line of railroad operated by the railway company, under circumstances which he claimed rendered the company liable in damages, although such liability was denied, and being desirous to compromise, adjust and settle the entire matter--

"Now, therefore, in consideration of the sum of seven hundred fifty and no-100 dollars ($ 750), to me this day paid by said company in behalf of itself and all companies whose lines are operated by it, I do hereby compromise said claim and do release and forever discharge the said company and all companies whose lines are leased or operated by it, its agents and employees, from any and all liability for all claims for all injuries, including those that may hereafter develop as well as those now apparent, and also do release and discharge them of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injuries above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes of action."

Plaintiff was paid by a draft to which was attached the following statement, which was signed by him:

"For, and in full release, discharge and satisfaction of all claims, demands and causes of action arising from or growing out of any and all injuries that I, W. H. Keown, may have sustained, including those that may hereafter develop as well as those now apparent when the bread delivery truck which I was driving on West 5th avenue in the city of Arkansas City, Kansas, was struck by a switch engine of the St. Louis-San Francisco Railway Company on October 23, 1924.

"It being distinctly understood and agreed that this amount is settlement in full for all matters sued for in a certain suit now pending in the United States district court, district of Kansas, second division, in which W. H. Keown is plaintiff and the St. Louis-San Francisco Railway Company defendant, said suit being for the sum of $ 11,222, this settlement to cover all expense incurred, including all hospital bills, medical and surgical bills and attorney's fees.

"Said suit to be dismissed with prejudice at cost of defendant.

. . . .

"In consideration of the payment of the sum of seven hundred fifty and no/100 dollars ($ 750) the receipt of which is hereby acknowledged, we hereby fully and forever release, discharge and acquit St. Louis-San Francisco Railway Company, of and from all suits, actions, causes of action, claims and demands of every class or character in anywise accruing to us on account of the matters and things above more fully set out."

Plaintiff's action against the railway company was dismissed with prejudice. Thereafter and on October 25, 1926, plaintiff filed his present action, and filed his second amended petition therein May 5, 1928. In this he alleges that on October 23, 1924, plaintiff was struck by a locomotive engine "and the femur of his right leg broken at a point about three or four inches above the knee, and the adjacent parts and tissues broken, mangled, and injured"; that he employed defendant to treat his injuries; that after defendant had reduced the fracture of his leg, and as part of the treatment given plaintiff for his injury, defendant "placed the plaintiff in bed and attached his injured leg to an apparatus consisting in part of a weight connected with cords and pulleys, designed and intended to produce traction upon...