Stitt v. Mahaney

• Decision Date: 22 December 1978
• Docket Number: Docket No. 59150,No. 1,1
• Citation: 272 N.W.2d 526,403 Mich. 711
• Parties: Daniel Joseph STITT, Plaintiff-Appellant, v. Robert C. MAHANEY, M.D., Donald E. DeWitt, M.D., Owen J. Gesink, d/b/a C. P. Truog & Associates, and the City of Holland, a Michigan Municipal Corporation, Defendants- Appellees. Calendar 403 Mich. 711, 272 N.W.2d 526
• Court: Michigan Supreme Court

Page 526

272 N.W.2d 526

Daniel Joseph STITT, Plaintiff-Appellant, v. Robert C. MAHANEY, M.D., Donald E. DeWitt, M.D., Owen J Gesink, d/b/a C. P. Truog & Associates, and the City of Holland, a Michigan Municipal Corporation Defendants- Appellees.

Docket No. 59150.

Calendar No. 1.

403 Mich. 711, 272 N.W.2d 526

Supreme Court of Michigan.

Argued Dec. 6, 1977.

Decided Dec. 22, 1978.

William L. Mackay, Lansing, for plaintiff-appellant.

Hillman, Baxter & Hammond, Grand Rapids, by Robert N. Hammond, Grand Rapids, for Robert C. Mahaney, M.D.

Norris & Keyser, P. C., Reginald L. Norris, J. Stephen Marshall, Grand Rapids, for defendant-appellee Owen J. Gesink.

Kitch & Suhrheinrich, P. C. by Richard R. DeNardis and Greory G. Drutchas, Detroit, for defendant-appellee City of Holland.

RYAN, Justice.

I agree that plaintiff is entitled to a new trial. However, I do not agree with Justice Williams' answer to the first question posed in this case. The release of the original tortfeasor was relevant to this suit against these alleged successive tortfeasors and was properly admitted in evidence.

I. Admissibility of the Release

I do not agree that the language of the printed release form under consideration clearly limits the release to the original tortfeasors. The language of the document of release explicitly releases, acquits and forever discharges any and all persons, firms and corporations from any and all actions, claims and all consequential damages in any way growing out of the injuries resulting from the original accident. ¹ The "boiler plate" language employed is that generally found in printed release forms for general application and its meaning is unclear. On its face it could be interpreted to release defendants, although it could also reasonably be interpreted as a release solely of the liability for injuries suffered in the original accident. Both interpretations are plausible. The question thus becomes one of determining the intention of the parties to the release.

Seeking to determine the intention of the parties to the release comports with the modern trend in this area of the law which is that the determination of whether a release of an original tortfeasor constitutes a bar to an action against the treating physician is a question of the intention of the parties to the release. 39 A.L.R.3d 260, § 2(a), p. 265 and § 8, p. 281. The question of the intention of the parties, where the language of the release is ambiguous, is normally one to be determined by the trier of fact.

The language of the printed release form used in this case was susceptible to conflicting interpretations, one of which plausibly would extend its terms to defendants. Consequently, it was necessary to determine the intention of the parties to the release. The document of release was relevant to this determination and, therefore, properly admissible in evidence. The factual determination of the parties' intention was properly left to the jury, with appropriate instructions. ²

II. Deduction of Amount Received from Original Tortfeasor from Potential Recovery Against Defendants

I agree that the trial court erred by instructing the jury that the law required a deduction of the prior settlement with the original tortfeasor from the damages, if any, found owing by defendants.

Because the jury instructions on this issue were erroneous, I would remand for a new trial with direction to the trial judge to properly instruct the jury on the permissible deductibility of all or part of the settlement in accordance with the substance of the instructions suggested by Justice Williams.

KAVANAGH, C. J., and FITZGERALD and COLEMAN, JJ., concur.

WILLIAMS, Justice.

This case raises the question of whether the release of a tortfeasor causing injuries through an automobile accident is necessarily relevant to a suit against successive and independent tortfeasors who render negligent medical attention. It also raises the question as to the propriety of a court instruction that the prior consideration from the original tortfeasor should be deducted from any liability of the subsequent tortfeasors. We hold that the prior release was not relevant to the suit against the successive and independent tortfeasors and that whether a deduction is appropriate is a question of fact.

I. FACTS

On July 5, 1970, plaintiff Daniel Joseph Stitt was riding a motorcycle to his place of employment when he was seriously injured in a collision with an automobile. Stitt was taken to the Holland City Hospital where he ultimately spent 7 1/2 weeks recovering from his injuries. We adopt the following facts from the Court of Appeals opinion which enumerate the injuries and the basis of this cause of action in medical malpractice, 72 Mich.App. 120, 123-124, 249 N.W.2d 319, 320-321 (1976).

"Plaintiff was * * * taken in critical condition and great pain to the emergency room at the defendant city's hospital. Defendant Dr. DeWitt, plaintiff's family physician, met him at the hospital and ordered numerous X-rays. Dr. DeWitt summoned defendant Dr. Mahaney, an orthopedic surgeon, who assumed care of the patient, reviewed the X-rays, and, pursuant thereto, ordered traction of the right leg in treatment of an apparent fracture of the right acetabulum (hip socket).

"Unbeknownst to Dr. Mahaney, a hospital technician had mislabeled an X-ray: plaintiff was actually suffering a fracture of his left hip. This error was discovered on the next day by defendant Dr. Gesink, a radiologist, who corrected the X-ray label and dictated a report for Drs. Mahaney and DeWitt with a copy for plaintiff's file. For some reason, Dr. Mahaney did not become aware of the error until his request for follow-up X-rays 11 days later. Traction remained for this period on the 'wrong' leg."

The defendants concede the mistake but assert that Stitt was not damaged thereby.

Two years after the accident, Stitt's father, as guardian for his then minor son, settled the negligence claim against the driver of the automobile for approximately $7500, including medical expenses, and executed a general release.

Subsequently, the instant action for damages resulting from the mislabeling of the X-ray was brought against Stitt's family doctor (Donald E. DeWitt, M.D.), ¹ the orthopedic surgeon (Robert C. Mahaney, M.D.), the X-ray service company (Owen J. Gesink, doing business as C. P. Truog & Associates), and the city of Holland (owner of the hospital).

The trial court allowed into evidence, over objection of plaintiff, the release executed by Stitt's father. The court instructed the jury as to the release as follows:

" * * * It is also his claim (Dr. Mahaney) that a settlement was made in the sum of $7,021.41, by the signing of a general release, and that general release, given in the course of that settlement, was a complete settlement of damages and injuries and bars the plaintiff from recovery from any of the defendants in this lawsuit. Dr. Mahaney claims he is entitled to a judgment in his favor." (147a)

" * * * Finally Dr. Gesink claims that the release given by the plaintiff to the automobile driver was intended to release him, as well." (149a)

" * * * It is also the City's position that plaintiff, in fact, sustained no additional injuries or aggravations of his accident injuries because of what happened, and that the hospital, as well as the other defendants, were intended to be released by the release received in evidence." (150a)

" * * * The defendants have the burden of proving their affirmative defense that they were released by the document received in evidence as Exhibit 40. That document will release these defendants only if at the time it was executed it was so intended by the plaintiff and his parents, and they intended that the sum received from the automobile driver was in full satisfaction not only of their claim against that driver but also their claims against the defendants in this lawsuit." (150a)

The court further instructed the jury as to the relevance of the settlement with the original tortfeasor:

" * * * The plaintiff received $7,020.41 in his settlement of the claim against the driver of the automobile involved in the motorcycle accident. Under the law of Michigan as it now exists, such a driver is responsible for the reasonably foreseeable consequences of his act, including the subsequent negligent conduct of others. The law further requires that any such payment received by the plaintiff from such driver be subtracted from any judgment returned against any subsequently negligent person. After you determine the amount of damages, if any, which have resulted from the negligence of one or more of the defendants in this lawsuit, you must then subtract $7,020.41 from that amount and return the resulting figure as your verdict." (153a)

Plaintiff's attorney objected to the instructions:

" * * * I would like to object to the court's instructing the jury on the grounds of the release because there is no proof in this record, affirmatively, that was proven or that it had anything to do with the acts of negligence of the defendants, nor should any deduction be made from the verdict." (155a)

The trial resulted in a jury verdict of no cause of action in favor of all defendants.

The Court of Appeals affirmed the judgment November 8, 1976. We granted leave to appeal May 9, 1977.

II. ISSUES

The issues upon which we granted leave to appeal involve the release and prior settlement; (1) whether the release was admissible into evidence by these defendants, and (2) whether the court properly instructed the jury that the amount received by plaintiff in consideration for the release must be deducted from any amount for which defendants might be held liable? We resolve both issues in the negative.

III. ADMISSIBILITY OF EVIDENCE

A. Release

Under the common law, release of one tortfeasor necessarily released all other tortfeasors who were jointly liable for the same injuries. Witucke v. Presque Isle...