Tidwell v. Smith, Gen. No. 11393

• Court: United States Appellate Court of Illinois
• Writing for the Court: CROW
• Citation: 27 Ill.App.2d 63,169 N.E.2d 157
• Parties: Artie V. TIDWELL, Plaintiff-Appellant, v. R. Glenn SMITH, Edward V. Platt, and The Sisters of the Third Order of St. Francis, a corporation, Defendants-Appellees.
• Docket Number: Gen. No. 11393
• Decision Date: 02 September 1960

Page 157

169 N.E.2d 157 27 Ill.App.2d 63 Artie V. TIDWELL, Plaintiff-Appellant,
v.
R. Glenn SMITH, Edward V. Platt, and The Sisters of the
Third Order of St. Francis, a corporation,
Defendants-Appellees. Gen. No. 11393. Appellate Court of Illinois, Second District, Second Division. Sept. 2, 1960.

[27 Ill.App.2d 64]

Page 158

John R. Snively, Rockford, for appellant.

Foltz, Haye & Keegan, Williams, McCarthy & Kinley, Rockford, for appellees.

CROW, Presiding Justice.

The plaintiff-appellant, Artie V. Tidwell, brought suit in one county against the defendants-appellees, R. [27 Ill.App.2d 65] Glenn Smith, Edward V. Platt, and The Sisters of the Third Order of St. Francis, a corporation, alleging that they forcibly, on May 31, 1957, in St. Anthony's Hospital, Rockford, made an assault upon him and performed an operation without his consent. The action is one at law, and the plaintiff demanded a jury trial in apt time. So far as material, the complaint alleges the defendant Smith was engaged in the practice of medicine and surgery, the defendant Platt was engaged in the practice of anesthesiology, and the defendant The Sisters of the Third Order of St. Francis, a corporation, owned and operated St. Anthony's Hospital, Rockford; 'the defendants, on May 31, 1957, in the St. Anthony Hospital, forcibly and unlawfully, made an assault upon the plaintiff and then and there performed an operation upon him without his consent'; and 'by the reason of the premises, and as a direct and proximate result thereof, the plaintiff sustained severe injuries, that an incision six inches in length was made in his abdomen, that he became sick, sore and disabled * * *' etc.

Page 159

The defendants filed separate motions to dismiss the complaint and cause of action, which motions were supported by affidavits, under Section 48 of the Civil Practice Act, Ch. 110, Ill.Rev.Stats., 1959, par. 48, and set up that the claim set forth in the plaintiff's complaint had been released, that a release given by the plaintiff to William B. Fonvielle, M.D., not a defendant here, dated July 23, 1958, a copy of which alleged release was attached, released any cause of action that the plaintiff might have against the defendants here under the theory that the release of one joint tort-feasor releases all, that the defendants and Dr. Fonvielle were, under the circumstances alleged, joint tort-feasors, if anything, that Dr. Fonvielle was present at the time of the alleged operation of May 31, 1957 and participated therein as an assisting surgeon, [27 Ill.App.2d 66] and Dr. Fonvielle had paid the plaintiff $4,000 in consideration of the alleged release. An additional grounds stated in the motion of the defendant The Sisters of the Third Order of St. Francis, a corporation, will be later indicated.

The plaintiff filed separate motions and affidavits in opposition to the motions to dismiss, to the effect the claim set forth in the complaint had not been released.

The defendants' motions to dismiss were granted and a final judgment was entered October 30, 1959 for the defendants, from which the plaintiff appeals.

Prior to a consideration of those motions, a discovery deposition of the plaintiff had been taken by the defendant Edward V. Platt. The plaintiff answered certain questions propounded to him, but refused to answer questions relating to the alleged release given by the plaintiff to Dr. Fonvielle, claiming the release was 'privileged' and did not relate to the merits of the matter in litigation. The plaintiff's refusal to answer was brought before the Court upon a motion by that defendant to compel answers, and the Court by an earlier order of July 9, 1959 had compelled him to answer questions concerning the alleged release. The record indicates no further orders concerning that matter, apparently the deposition was renewed and the plaintiff answered the questions, and the plaintiff made no effort to appeal from that order of July 9, 1959.

The plaintiff-appellant's theory is that the Court erred in entering an order compelling him to answer the questions propounded on the discovery deposition, and in granting the defendants' motions to dismiss. The plaintiff argues that the court erred in not finding that a material and genuine disputed question of fact was raised concerning the commission of separate alleged torts, one being a tort committed by Dr. William[27 Ill.App.2d 67] B. Fonvielle, and the other a tort or torts by the defendants, rather than there being a joint tort by Dr. Fonvielle and the defendants as joint tort-feasors.

The copy of the alleged release attached to the defendants' motions is a general release dated July 23, 1958 by the plaintiff of Dr. Fonvielle from all manner of actions, etc. for anything from the beginning of the world to that date for an expressed consideration of $1 and other good and valuable considerations.

The defendant Dr. R. Glenn Smith in his affidavit asserted that he performed a surgical operation on the plaintiff on May 31, 1957 for the repair of a puncture of the colon; he had never previously treated the plaintiff; the plaintiff was a partient of Dr. Fonvielle and this surgical procedure engaged in by him on the plaintiff was done as a part of the treatment given and afforded the plaintiff by Dr. William B. Fonvielle; and Dr. Fonvielle assisted the affiant and was present at all times during the surgical procedure of the affiant referred to in the complaint.

The defendant Dr. Edward V. Platt in his affidavit asserted that the plaintiff was a patient of Dr. William B. Fonvielle on May 31, 1957 in St. Anthony Hospital; he, Dr. Edward V. Platt, administered anethesia in connection with the surgical procedure by Dr. Smith, the principal surgeon, upon the

Page 160

plaintiff for the repair of a perforation of the colon; and Dr. Fonvielle was present in the operating room all the time and assisted in the surgical procedure.

The affidavit of Frederick H. Haye, one of the defendants' attorneys, was to the effect that he had examined the plaintiff on the discovery...