Rudick v. Pioneer Memorial Hospital

• Decision Date: 18 December 1961
• Docket Number: No. 17229.,17229.
• Citation: 296 F.2d 316
• Parties: Clara RUDICK, Appellant, v. PIONEER MEMORIAL HOSPITAL, Denison M. Thomas, M.D., and Charles E. Donley, M.D., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

296 F.2d 316 (1961)

Clara RUDICK, Appellant, v. PIONEER MEMORIAL HOSPITAL, Denison M. Thomas, M.D., and Charles E. Donley, M.D., Appellees.

No. 17229.

United States Court of Appeals Ninth Circuit.

October 13, 1961.

Rehearing Denied December 18, 1961.

Ryan & Ryan, Fulop & Gross, Portland, Or., for appellant.

Hugh L. Biggs, George H. Fraser and Cleveland C. Cory, William F. Thomas, William H. Morrison, Portland, Or., for appellees.

Before HAMLIN, MERRILL and KOELSCH, Circuit Judges.

MERRILL, Circuit Judge.

By this diversity action appellant seeks to recover damages for negligent medical care and treatment received by her following an automobile accident. The question presented is whether her right to such recovery has been barred by virtue of her having released the driver of the automobile.

In the district court the case was assigned to Judge John F. Kilkenny. In the pretrial order the facts are stated as follows:

"On or about the 25th day of May, 1957, in the vicinity of Mitchell, Oregon, plaintiff, Clara Rudick, a single woman, was involved in an automobile accident while riding as a passenger in an automobile being driven and operated by one James W. Locke. As a proximate result of said automobile accident plaintiff received certain injuries to her person, and as a proximate result of said injuries plaintiff received hospitalization, care and treatment from the defendant Pioneer Memorial Hospital (Prineville Memorial Hospital) and medical care and treatment from the defendants Denison M. Thomas, M.D., and Charles E. Donley, M.D. Such injuries as the plaintiff sustained to her person and the medical care and treatment and hospitalization afforded to the plaintiff by defendants all occurred within the State of Oregon.

"Plaintiff returned to her home where, on or about June 27, 1957, she consulted a physician and learned that further medical care and treatment would be necessary. Plaintiff was hospitalized and shortly thereafter underwent surgery in an attempt to correct the condition then known to exist."

On November 27, 1957, plaintiff signed a document entitled "Release of all Claims," which provided in part as follows:

"For and in Consideration of the payment to the undersigned, Clara Rudick, of the sum of Forty-two Hundred Fifty and 00/100 ($4,250.00) Dollars, the receipt whereof is hereby acknowledged, the undersigned does hereby release, acquit and forever discharge James W. Locke and all other persons, firms and corporations in any way interested or concerned, of and from any and all claims, demands, damages, actions and causes of actions of every kind and nature whatsoever, past, present and future, anticipated and unanticipated, whether the same may be now known or suspected to exist or may be hereafter discovered, for, by reason or on account of injuries to the person and property of the undersigned, and the consequences flowing therefrom, and any and all damages, general or special, sustained or to be hereafter sustained by the undersigned, as the result of that certain accident, casualty or event which occurred on or about the 25th day of May, 1957, at or near Mitchell, Oregon, wherein Clara Rudick sustained Per. Inj.

* * * * * *

"It is understood and agreed that this is a full and final compromise, release and settlement of all such claims, demands, damages, actions and causes of action, known and unknown, illegible and unsuspected, and, as a further consideration and inducement for this compromise settlement on provisions of Section 1542 of the Civil Code of the State of California are hereby expressly waived by the undersigned, and the undersigned does hereby expressly agree that this release shall extend and apply to all unknown, unsuspected and unanticipated injuries and damages resulting from said accident, casualty or event, as well as to those now disclosed."

The issue as to the scope and effect of the release document was segregated for trial and determination of this issue was referred to Judge Gus J. Solomon. Upon consideration of the legal problem presented, Judge Solomon ordered a hearing upon the question of intention of the parties in the execution of the release. That hearing was had before Judge Kilkenny, the parties stipulating that Judge Solomon might use a transcript of the testimony taken at the hearing.

The only witnesses testifying with respect to intent were appellant and her brother. Judge Solomon concluded that appellant had "failed to sustain the burden imposed upon her to prove an intention different from that clearly expressed in the document itself." Judgment was rendered in favor of appellees, from which this appeal is taken.

Upon this appeal the parties differ in their construction of Oregon law as bearing upon the legal effect of the release. In this respect, we agree with the views and reasons of Judge Solomon as expressed in his opinion of December 10, 1959, denying defendants' motion for dismissal and ordering a hearing upon the question of intent. He stated:

"In Stires v. Sherwood, 1915, 75 Or. 108, 145 Pac. 645, the Oregon court held that a release in favor of one of several joint tort-feasors operated to discharge all. This rule was not based upon the supposed intention of the releasing party but upon the rationale `that the plaintiff has but one cause of action and can reap but one satisfaction.\' 75 Or. at page 112 145 P. at page 646.

"In McDonough v. National Hospital Ass\'n, 1930, 134 Or. 451, 294 Pac. 351, and in Williams v. Dale, 1932, 139 Or. 105, 8 P.2d 578 82 A.L.R. 922, the court recognized the rule that an injured party\'s cause of action against an original tort-feasor encompassed damage resulting from the negligent examination and treatment of the original injuries. The court therefore held that a release in favor of the original tort-feasor operated to discharge not only joint tort-feasors but also aggravating tort-feasors.

"However, in Hicklin v. Anders, 1954, 201 Or. 128, 253 P.2d 897, 269 P.2d 521, Justice Hall Lusk, speaking for the Court in a well reasoned and exhaustive opinion, repudiated the rationale of these cases as a `surviving relic of the Cokian period of metaphysics,\' and expressly adopted the rule that `releases must be given effect according to the intention of the parties.\' 201 Or. at page 135 253 Pa.2d at page 899.

"Although the document involved in this case purports to be a general release, we do not consider that fact to be controlling on the question of the intention of the parties.

"In Keadle v. Padden, 143 Or. 350, 20 P.2d 403,

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