McMillen v. Klingensmith

• Decision Date: 12 May 1971
• Docket Number: No. B--2203,B--2203
• Citation: 467 S.W.2d 193
• Parties: Kenneth D. McMILLEN et ux., Petitioners, v. Dr. William KLINGENSMITH et al., Respondents.
• Court: Texas Supreme Court

Page 193

467 S.W.2d 193

Kenneth D. McMILLEN et ux., Petitioners, v. Dr. William KLINGENSMITH et al., Respondents.

No. B--2203.

Supreme Court of Texas.

May 12, 1971.

Wheeler, Watkins, Hubbard, Patton & Peek, James R. Hubbard, Texarkana, Fitzjarrald Poole, Edward L. Poole, Amarillo, for petitioners.

Stone, Stone & Chambers, Ben H. Stone, Jr. and John C. Chambers, Amarillo, for respondents.

POPE, Justice.

Joyce Lynn McMillen and husband sued Dr. William Klingensmith and Dr. Henry E. Martinez for negligence in the treatment of Joyce McMillen's injuries which she suffered in an automobile collision with a car driven by William Robert Perkins. Mrs. McMillen and her husband released Perkins from all claims upon his payment of $7,900. The McMillens then instituted suit against the two physicians who moved for summary judgment grounded upon the release. The trial court and the court of civil appeals rendered judgment for the defendant doctors, holding that the release of the original tort-feasor operated to release the subsequent tort-feasors also. 454 S.W.2d 424. We reverse those judgments and remand the cause to the trial court.

The collision occurred on June 2, 1967. Mrs. McMillen was hospitalized in Clarendon, Texas, for emergency treatment, including an emergency tracheostomy. She was then transferred to an Amarillo hospital where the two defendant physicians treated her. On June 9, 1967, Mrs. McMillen was released from the hospital, and accompanied by a nurse, returned to her home in California.

On May 2, 1968, Mrs. McMillen and her husband, upon receipt of $7,900, signed a release which named Perkins only and discharged him

'from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known AND UNKNOWN personal injuries and property damage resulting or to result from the accident that occurred on or about the 2nd day of June, 1967, at or near Clarendon, Texas.

I/we hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, * * *.

This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.'

On May 22, 1969, the McMillens filed suit against Doctors Klingensmith and Martinez, asserting that their negligent diagnoses and treatment resulted in permanent damage to her larynx. The two doctors answered and moved for summary judgment, contending that the release of Perkins was also a release of them. The legal question presented is whether the McMillens may maintain an action for damages against the doctors for malpractice after releasing from liability the named tort-feasor whose conduct made the services of the doctors necessary.

Both parties before us recognize the significance of Cannon v. Pearson, 383 S.W.2d 565 (Tex.1964), in deciding the issue in this case. We granted the application for writ of error in that case believing that the issue stated above was presented for decision. However, we ultimately concluded that the trial pleadings and the summary judgment proofs were not directed to that issue.

In Cannon v. Pearson, Supra, we reviewed the rule that a release of an original named tort-feasor also operates to release an unnamed negligent doctor, citing three Texas cases which had followed the rule. Those cases are, Sims v. Auringer, 301 S.W.2d 286 (Tex.Civ.App.1957, writ ref. n.r.e.); Borden v. Sneed, 291 S.W.2d 485 (Tex.Civ.App.1956, writ ref. n.r.e.); Phillips v. Wright, 81 S.W.2d 129 (Tex.Civ.App.1935, writ dis.). We then said that the rule had been disavowed by a number of jurisdictions and wrote that the modern tendency 'is to treat the older rule as an illegitimate off-spring of the rule that release of one joint tort-feasor releases all, which rule is itself condemned by some of our ablest scholars on the theory that the courts have confused release of a party with satisfaction of a cause of action.'

We cited a number of precedents which had adopted or changed to the rule that the release of the original named tort-feasor did not necessarily release an unnamed subsequent tort-feasor. In addition to the cases cited in Cannon v. Pearson, Supra, we now add Dickow v. Cookinham, 123 Cal.App.2d 81, 266 P.2d 63, 40 A.L.R.2d 1066 (1954); Kyte v. McMillion, 256 Md. 85, 259 A.2d 532 (1969); Smith v. Conn., 163 N.W.2d 407 (Iowa 1968); Steeves v. Irwin, 233 A.2d 126 (Me.1967); Galloway v. Lawrence, 263 N.C. 433, 139 S.E.2d 761 (1965); DeNike v. Mowery, 69 Wash.2d 357, 418 P.2d 1010 (1966); Rudick v. Pioneer Memorial Hosp., 296 F.2d 316 (9th Cir. 1961); Leech v. Bralliar, 275 F.Supp. 897 (D.Ariz.1967).

The rule that a release of an original tort-feasor also releases a malpracticing physician finds its basis in the broader common-law rule known as the unity of release rule. The unity of release rule is based upon the idea that there is such a unity of the obligation or injury that a release of one is release of all. After a re-examination of this common-law rule, we have now determined to place our decision in this case upon a broader base than that expressed by our dictum in Cannon v. Pearson.

The legal basis for the unity of release rule has been challenged by every legal scholar who has examined it. 4 Corbin, Contracts, Sec. 931--935 (1951); 1 Harper and James, The Law of Torts, Sec. 10.1 (1956); Prosser, Law of Torts, Sec. 46 (3d ed. 1964); Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413 (1937); Salmond, Torts, p. 90 (11 ed. 1953); Throckmorton's Cooley on Torts, Sec. 80 (1930); 2 Williston, Contracts, Sec. 338A (3d ed. 1959); Note, 17 Ill.L.Rev. 563 (1923).

Underlying much of the criticism is the idea mentioned in Cannon v. Pearson, Supra, that there has been a confusion of satisfaction of a claim with release of a cause of action. As expressed by Prosser: 'A satisfaction is an acceptance of full compensation for the injury; a release is a surrender of the cause of action, which might be gratuitous, or given for inadequate consideration.' Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413, 423 (1937). Unless the settlement with one of the tort-feasors fully satisfies the injured party, the release of one party should, according to Prosser, release only the tort-feasor who makes the partial settlement.

Those jurisdictions which purport to follow the unity of release rule have, nevertheless, looked with favor upon devices, such as the 'covenant not to sue' or a reservation of a cause against others, which are used to skirt the rule. Texas is among those jurisdictions which hold that such devices will save the cause against another tort-feasor when a release would be fatal to it. Riley v. Industrial Finance Service Co., 157 Tex. 306, 302 S.W.2d 652 (1957); Hunt v. Ziegler, 271 S.W. 936, Aff'd, 280 S.W. 546 (Tex.Com.App.1926, jdgmt adopted); Pearce v. Hallum, 30 S.W.2d 399 (Tex.Civ.App.1930, writ ref.); Lone Star State Life Ins. Co. v. Foster, 250 S.W.2d 949 (Tex.Civ.App.1952, writ ref. n.r.e.); City of Coleman v. Kenley, 168 S.W.2d 926 (Tex.Civ.App.1943, writ ref. w.o.m.); Cox v. Rio Grande Valley Telephone Co., 13 S.W.2d 918 (Tex.Civ.App.1929, writ dis.); Pennington v. Bevering, 9 S.W.2d 401 (Tex.Civ.App.), Aff'd on other grounds, 17 S.W.2d 772 (Tex.Com.App.1929, jdgmt adopted); St. Louis, I.M. & S. Ry. Co. v. Bass, 140 S.W. 860 (Tex Civ.App.1911, writ ref.); El Paso & S.R. Co. v. Darr, 93 S.W. 166, 169 (Tex.Civ.App.1906, writ ref.); Blake v. Kansas City Southern Ry. Co., 38 Tex.Civ.App. 337, 85 S.W. 430 (1905, no writ); see, Barnett, Release of Joint Tort-Feasors in Texas, 36 Tex.L.Rev. 55 (1957).

These judicial efforts to avoid the harsh common-law rule have also been challenged for their artificial reasoning. They have been declared by the scholars cited above to be less than forthright, judicial fudging, and a trap for the unwary who do not notice in a document such nice distinctions. Breen v. Peck, 28 N.J. 351, 146 A.2d 665, 73 A.L.R.2d 390 (1958).

Mr. Justice Rutledge, while serving on the court of appeals for the District of Columbia wrote McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253 (1943). He thoroughly...