Smith v. Thompson, 458.

• Decision Date: 25 November 1936
• Docket Number: No. 458.,458.
• Citation: 210 N.C. 672,188 S.E. 395
• Parties: SMITH. v. THOMPSON.
• Court: North Carolina Supreme Court

210 N.C. 672

188 S.E. 395

SMITH.

v.THOMPSON.

No. 458.

Supreme Court of North Carolina.

Nov. 25, 1936.

Appeal from Superior Court, Wake County; M. V. Barnhill, Judge.

Action by Mrs. J. P. Smith against Dr. Hugh Thompson. From a judgment for defendant, plaintiff appeals.

Affirmed.

The plaintiff brought this action for damages, against the defendant for malpractice. The plaintiff was injured in a motorcycle accident on July 11, 1929, which resulted in a broken leg. The defendant, a physician, was called in to treat her.

The defendant in his answer, among other things, says: "It is specifically denied that the defendant did any negligent act or negligently omitted to do any act in connection with the treatment and care of the plaintiff, and it is specifically denied that the said injuries to the plaintiff and her said disabilities, or any of them, were in any way caused by any negligent act or omission by the defendant, but on the contrary it is alleged that each and all of the said injuries and disabilities of the plaintiff were caused by the aforesaid automobile accident, and that the treatment furnished by the defendant to the plaintiff had no effect upon the plaintiff's said injuries or upon her general physical condition, except that the said treatment furnished by the defendant greatly lessened and decreased the pain, suffering and disabilities resulting to the plaintiff from the said accident."

In an amended answer, allowed by the court, the defendant alleges: "That as the defendant is informed and believes, and, therefore, alleges, the plaintiff was injured in an accident and collision with a motorcycle, driven by one W. J. Andrews, while in the employment of P. D. Gattis, on July 11, 1929, and for which the said W. J. Andrews and P. D. Gattis were responsible and liable, and that as a result of said accident and collision, the plaintiff sustained a very serious injury to her leg, described as a compound comminuted fracture of both bones of the leg, the large bone or tibia penetrating and protruding out of the skin approximately two inches and being covered with dirt. That on or about October 3, 1929, the plaintiff executed and delivered, for valuable consideration, to the parties responsible for the said accident and collision, from which plaintiff's injury resulted, to-wit, the aforesaid P. D. Gattis and W. J. Andrews, a release and discharge in settlement and in satisfaction of all claims which she then had or might have for any injury arising out of or resulting from said accident, or which might thereafter arise therefrom. That after the careful and skillful treatment rendered by the defendant and after the date of the alleged occurrence of the matters complained of in the complaint, plaintiff was satisfied with the care and skill employed in her treatment by the defendant even to the extent that she was willing to execute the aforesaid release; and the defendant hereby pleads the execution of the aforesaid release by the plaintiff in bar of this action."

In answer to the amended answer, the plaintiff admits the release, reiterates malpractice on the part of defendant, and that it was signed on the fraudulent representation of defendant. "That he advised plaintiff that her limb would be practically as good as new within a few months and that at the time said release was signed releasing said P. D. Gattis and W. J. Andrews for their negligence in causing the original injury to her limb, the said defendant wrote a letter to the then plaintiff's attorney assuming the after care of plaintiff upon the payment of a further sum of money to him for professional services rendered and to be rendered in his treatment of her. Plaintiff alleges further that said amount which the defendant claimed was due him for his professional services to that time and for the after care necessary in the treatment of her limb was paid out of the small recovery which she received. Plaintiff alleges further that she never would have accepted such a small compromise except for the advice of the de-fendant who was then her physician and in whose care she was. Plaintiff alleges that she had confidence in his statement to the effect that she would completely recover within a short while."

The release is as follows:

"General Release.

"In Consideration of the sum of twenty-four hundred and no/100 dollars, received by me this 3rd day of October, 1929, We, Mrs. Dora Smith and husband, J. P. Smith, of the County of Wake and the State of North Carolina, have released and discharged and do hereby for myself, my heirs, executors and administrators, release and discharge P. D. Gattis and W. J. Andrews, executors and administrators, successors and assigns', of and from any and all claims for damages of any kind or character whatsoever and all causes of action, claims and demands whatsoever which I ever had, now have, or may hereafter have by reason of personal injuries sustained by me on or about the 11th day of July, 1929, or by reason of any cause, matter or thing whatsoever, including all medical expenses. It is hereby expressly understood and agreed that it is the intention of the parties hereto and they do hereby settle and compromise the aforesaid claim for damages and that the said sum of twenty four hundred and no/100 dollars, is the sole consideration of this release, and all agreements and understandings between the parties are hereto embodied and expressed therein. Thus done and signed at the City of Raleigh, State of North Carolina, on this 3rd day of October, 1929.

"Mrs. Dora Smith

"210 South Blount Street,

"Raleigh, N. C.

"J. P. Smith,

"210 South Blount Street,

"Raleigh, N. C."

"Thomas Ruffin, Witness

"Raleigh, N. C.

"Seleta Felton, Witness.

"Notary Public,

"909 Citizens Nat'l Bank Bldg.

"Raleigh, N. C.

The judgment of the court below is as follows: "This cause coming on to be heard, and being heard before His Honor, M. V. Barnhill and a jury, at the Third March Term, 1936, and upon motion by the defendant for judgment upon the pleadings, and it appearing from the pleadings filed herein that on the 11th day of July, 1929, the plaintiff suffered a broken left leg just above her ankle as result of collision with the motorcycle driven and operated by P. D. Gattis and W. J. Andrews; that the defendant herein was engaged to treat and treated the plaintiff for said injuries resulting from said collision; that thereafter on or about October 3, 1929, and subsequent to the date of the alleged acts of the defendant herein complained of, which are in connection with treatment rendered plaintiff by the defendant for her injuries resulting from the aforesaid collision, the plaintiff executed and delivered to said P. D. Gattis and W. J. Andrews, the parties originally responsible for plaintiff's accident and injuries complained of herein, a full release, settlement, and discharge, releasing said P. D. Gattis, and W. J. Andrews from all liability for their negligence in causing plaintiff's injuries and from any and all claims for damages of any kind or character whatsoever which she then had or might thereafter have by reason of personal injuries sustained by her as result of said motorcycle collision, or which might thereafter result from said injuries and in satisfaction of said claims and the Court being of the opinion that the aforesaid release and discharge of said P. D. Gattis and W. J. Andrews by the plaintiff, as set forth by defendant in his further answer and plea in bar and admitted by the plaintiff, constitutes a good and sufficient release of defendant herein and a bar to this action, and that the plaintiff is not entitled to recover anything of the defendant in this action, it is, therefore, Considered, Ordered and Adjudged that the plaintiff take nothing of the defendant in this action and that this action be, and the same is hereby, dismissed, that the defendant go hence without day, and that the costs of this action be taxed against the plaintiff.

"[Signed] M. V. Barnhill, Judge

Presiding."

To the foregoing judgment as signed, the plaintiff excepted and assigned error and appealed to the Supreme Court.

W. Brantley Womble and R. B. Temple-ton, both of Raleigh, for appellant.

Smith, Leach & Anderson, of Raleigh, for appellee.

CLARKSON, Justice.

Did the court err in rendering judgment upon the pleadings in favor of the defendant? We think not.

Plaintiff was injured in a motorcycle accident on July 11, 1929. On October 3, 1929, represented by her counsel, plaintiff settled all her claims for damages against the operators of the motorcycle which struck her, receiving the sum of $2,400 in full compensation for all injuries resulting from said collision, or which might thereafter result therefrom. In consideration of said settlement and compensation, plaintiff and her husband executed a...