Lockett v. Goodill, 38769

• Decision Date: 20 July 1967
• Docket Number: No. 38769,38769
• Citation: 430 P.2d 589,71 Wn.2d 654
• Parties: Eugene R. LOCKETT, Appellant, v. Fred GOODILL, G. H. Lawrence, John Doe, and Richard Roe et al., d/a/b the Mason Clinic, a Co-Partnership, and the Virginia Mason Hospital, Inc., a corporation, Respondents.
• Court: Washington Supreme Court

Page 654

71 Wn.2d 654

430 P.2d 589

Eugene R. LOCKETT, Appellant, v. Fred GOODILL, G. H. Lawrence, John Doe, and Richard Roe et al., d/a/b the Mason Clinic, a Co-Partnership, and the Virginia Mason Hospital, Inc., a corporation, Respondents.

No. 38769.

Supreme Court of Washington, Department 1.

July 20, 1967.

Wright, Wendells, Froelich & Power, Alan L. Froelich, Seattle, Duane S. Radliff, Enumclaw, for appellant.

Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Seattle, for respondents.

PER CURIAM.

The trial court sustained a challenge to the sufficiency of plaintiff's evidence as a matter of law. He appeals from a judgment dismissing his action.

April 14, 1964, plaintiff commenced this action for damages against Dr. G. H. Lawrence who, on April 19, 1961, operated upon him for appendicitis; Dr. Fred Goodill, the anethesiologist; the Mason Clinic, a copartnership; and the Virginia Mason Hospital, a corporation, where the operation was performed.

Although the appendectomy was apparently successful, plaintiff was paralyzed in both lower extremities after the operation. An epidural block had been administered. Plaintiff was in the hospital from April 19 until June 13, 1961. During this period, Dr. John Sutton Tytus, a neurologist and neurosurgeon practicing at the Mason Clinic, was called as a consultant. Plaintiff was given muscle tests and an electromyogram at the University Hospital, and a number of physical therapy treatments before his discharge from the hospital. He made three outpatient calls to the hospital after his discharge, the last on August 28, 1961.

When discharged from the hospital, plaintiff was able to use a walker, later crutches, then canes, until, at the time of trial January 5, 1966, he could walk on the level without the canes for about a block; however, he had no reflex reaction to catch himself in the event he stumbled. He has not been able to return to his job as a truck driver.

The defendants appeared, denied negligence, and pleaded a written release in full, signed by plaintiff and dated November 17, 1961, as an affirmative defense. The release recites payment to plaintiff of $5,616.

October 30, 1964, the trial court entered an order

granting separate trials as to the issue concerning the validity and effect of the release involved herein and as to the issue of liability and damages on the merits.

The order further provided that if the release was set aside, two months were to intervene between the dates of the two trials.

The court having sustained a challenge to the sufficiency of plaintiff's evidence upon the first of the two possible trials, the issue before us on this appeal is a narrow one.

The release pleaded by defendants as an affirmative defense came into existence as follows: In October, 1961, plaintiff telephoned the hospital and asked to talk with one of its 'insurance agents.' The insurance adjuster met with plaintiff three times over a period of four or five weeks. The adjuster made no representations to plaintiff, who signed the release and received payment of an amount identified as plaintiff's average weekly wage of $108 per week for a year--a formula of settlement suggested by plaintiff. The adjuster told defendants that plaintiff believed he would only be denied use of his legs for a year. There...