Knight v. Lowery

Decision Date16 June 1971
Docket NumberNo. 3,45798,Nos. 45797,s. 45797,3
Citation183 S.E.2d 221,124 Ga.App. 172
CourtGeorgia Court of Appeals
PartiesJack D. KNIGHT, Jr. v. William D. LOWERY, Jr. Jack D. KNIGHT, Sr. v. William D. LOWERY, Jr

Syllabus by the Court

An instrument which releases and discharges not only named entitles but also 'all other persons, firms or corporations liable or who might be claimed to be liable * * * on account of all injuries, known and unknown * * * which have resulted or may in the future develop from' a described occurrence releases all entities falling within the quoted classification as donee beneficiaries.

Jack D. Knight, Jr., a minor, was seriously injured in an automobile accident on February 25, 1967, and was treated by Dr. liable or who might be claimed to be liable from February 25 until April 1, when the boy was transferred to his hometown hospital. Dr. Lowery examined the boy again on April 12 and had no further contact with the Knights.

Thereafter, on June 30, 1967, after proceedings in the court of ordinary, Jack D. Knight, individually and as guardian of his injured son, and Mrs. Knight, the boy's mother, executed released to Harold and Jack Boling, the driver and owner of the automobile involved, and State Farm Mutual Automobile Insurance Company, the latter's insurance carrier, in consideration of State Farm's payment of $10,500, the limit of its liability and medical payment coverage. In addition to releasing these named parties to the contract, the instruments also released and forever discharged 'all other persons, firms or corporations liable or who might be claimed to be liable * * * from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown * * * which have resulted or may in the future develop from' the described accident. The Knights, further declared that the terms of the settlement were voluntarily accepted for various purposes, 'and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.'

The present litigation arose when Mrs. Knight and Jack D. Knight, individually and as guardian of his son, filed suit against Dr. Lowery for professional negligence, the gist of the allegations being that Dr. Lowery failed to diagnose and remove a subdural hematoma which developed during his course of treatment, thereby causing further harm and injury to the boy's injured brain. Dr. Lowery answered, asserting as his fifth defense that the previously-executed releases barred the action. Motion for summary judgment was made and granted on the same basis, and plaintiffs appeal.

Levin, Askew, Warfield, Graff & Mabie, Lefferts L. Mabie, Jr., Pensacola, Fla., Colson & Hicks, Miami, Fla., Jay, Garden & Sherrell, Clayton Jay, Jr., Fitzgerald, for appellants.

Divine, Busbee & Wilkin, George D. Busbee, Watson, Keenan, Spence & Lowe, G. Stuart Watson, Albany, for appellee.

EBERHARDT, Judge.

Although the affidavit in opposition to the motion for summary judgment and the issues argued in this court call into question the soundness of our decisions in Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E. 114 (insofar as it stands for the proposition that a release given only to the original tortfeasor effects, by operation of law, the release of a physician negligently aggravating the injuries) and in cases such as Caplan v. Caplan, 62 Ga.App. 577, 9 S.E.2d 96; Gorman v. Griffin, 70 Ga.App. 585, 28 S.E.2d 897; City of Buford v. Hosch, 104 Ga.App. 615, 122 S.E.2d 287 and others (insofar as they stand for the proposition that a release given only to one tortfeasor effects, by operation of law, the release of another even though the two did not act in concert in furtherance of a common purpose or design), we conclude that the judgment below must be affirmed, not under the rationales of the cited cases, but purely as a matter of contract law.

Three New York cases, reaching varying results on varying bases, bring the matter into focus. In Milks v. McIver, 264 N.Y. 267, 190 N.E. 487, the infant plaintiff was injured in an automobile accident and taken to a hospital for treatment. After her discharge her guardian ad litem executed a release to the owner and operator of the automobile involved, and then brought an action for damages sustained through negligent treatment while in the hospital. The attending physician moved to dismiss the complaint on the grounds that the claims against him had also been released, and the New York court affirmed the granting of the physician's motion. Noting that the original wrongdoer is liable for the negligence of the physician in aggravating the injuries, the court stated, through Judge Lehman: 'It may be argued that the original wrongdoer who caused the injury and the physician whose negligence aggravated the injury are not, in technical sense, joint tort-feasors. Nevertheless their wrongs coalesced and resulted in damage which would not have been sustained but for the original injury.' (emphasis supplied).

Twenty-eight years later, in Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556, the same court was 'called upon to decide whether a general release given by the plaintiff to the wrongdoer who caused her initial injuries also releases the physician who negligently treated those injuries,' the very same question it had decided before. While in the Derby case the court collected much of the criticism of the joint tortfeasor-release rule, the majority chose to sidestep, over dissent. Judge Lehman's obvious analogy to, and extension of, the release rule, and declined to follow the Milks case by holding: 'Since, therefore, neither the joint tort-feasor doctrine nor the reasons underlying it are here applicable, we may not say, as a matter of law (on motion for summary judgment), that the release executed by the plaintiff bars the present action. In the light of our analysis, the question for resolution, and it is to be decided as an issue of fact upon a trial, is whether the plaintiff's settlement with the taxicab driver (released tortfeasor) did actually constitute satisfaction of all damages caused by his wrong or was intended as such. If it did, or was so intended, no claim remained against the doctor. But, if it did not reflect full satisfaction, and was not so regarded-and the burden of proving this essential fact rests upon the plaintiff-the release will not prevent recovery against the doctor.'

In the context here, the important point to note about these two cases is that the releases were executed only in favor of the named original tortfeasors and did not, by their terms, extend to the physician or to mankind in general, insofar as the court's treatment of the releases reveals. The New York court either did (Milks v. McIver, 264 N.Y. 267, 190 N.E. 487, supra) or did not (Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra) extend the benefit of the releases to third parties by indulgence in legal metaphysics, and not by application of contract principles. In contrast, the opinion in Oxford Commercial Corp. v. Landau, 12 N.Y.2d 362, 239 N.Y.S.2d 865, 190 N.E.2d 230, 13 A.L.R.3d 309, authored by Judge Fuld, who had written for the majority only four months earlier in Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra, proceeded on an entirely different basis, for in the Landau case the wording of the release was critically different from that in the Derby case.

In the Landau case the plaintiff corporation discovered that Carlin, one of its directors, had been siphoning off its assets. A settlement was agreed upon, and the corporation, 'in addition to 'releasing' Carlin, agreed that it would not bring 'any suit, against any person whomsoever' except those specifically named.' 12 N.Y.2d p. 364, 239 N.Y.S.2d p. 866, 190 N.E.2d p. 230 (Emphasis supplied). The corporation then sued its accountants, alleging, inter alia, that they had aided and abetted Carlin. The accountants moved for summary judgment, contending, inter alia, that they were donee beneficiaries of the corporation's promise not to sue 'any person whomsoever' and that the parol evidence rule prohibited the introduction of oral testimony to prove otherwise. In opposition, the corporation maintained that it was entitled to show that the parties to the agreement did not contemplate that the promise was to inure to the benefit of the accountants. In agreeing with the accountants' contentions and reinstating the trial court's grant of summary judgment to them, the court asserted: 'It is too well settled for citation that, if a written agreement contains no obvious or latent ambiguities, neither the parties nor their privies may testify to what the parties meant but failed to state. Although it is sometimes broadly observed that the parol evidence rule has no application to any except parties to the instrument (citations omitted), it is clear that in the case of a fully integrated agreement, where parol evidence is offered to vary its terms, the rule operates to protect all whose rights depend upon the instrument even though they were not parties to it. (Citing, inter alia, 3 Corbin, Contracts § 596 (1960); 4 Williston, Contracts § 647 (3d ed. 1961); 9 Wigmore, Evidence § 2446, p. 150 (3d ed. 1940)). In the case before us, the (corporation's) agreement not to sue 'any person whomsoever' except those specifically named is too clear and precise to admit of evidence that the parties intended to exclude the (accountants) from this allinclusive category. (Citations omitted). It is the very definiteness of the language employed concerning the parties to be relieved of liability which differentiate the present from cases such as Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556.'

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    • United States
    • Georgia Court of Appeals
    • April 9, 1974
    ...The release of Troup County covers these defendants and the court did not err in dismissing them as defendants. See Knight v. Lowery, 124 Ga.App. 172, 183 S.E.2d 221, reversed in part in Knight v. Lowery, 228 Ga. 452(1), 185 S.E.2d 4. But as to the other defendant, Dr. McCrary, the law resp......
  • Knight v. Lowery
    • United States
    • Georgia Supreme Court
    • December 2, 1971
    ...doctor's motion for summary judgment made on that basis, and the Knights appealed to the Court of Appeals. The Court of Appeals, 124 Ga.App. 172, 183 S.E.2d 221, affirmed the trial court, holding, 'purely as a matter of contract law,' that the release was unambiguous, and that Dr. Lowery wa......
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    • United States
    • Georgia Court of Appeals
    • October 11, 1977
    ...tortfeasor effects, by operation of law, the release of a physician negligently aggravating the injuries. See Knight v. Lowery, 124 Ga.App. 172, 173, 183 S.E.2d 221). Thus, the issue of defendant's liability for plaintiff's loss of sight is a matter for jury consideration. It is, of course,......
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