Whitt v. Hutchison, No. 74-812

CourtOhio Supreme Court
Writing for the CourtSTERN; Wanamaker; C. WILLIAM O'NEILL, C. J., and HERBERT; PAUL W. BROWN
Citation43 Ohio St.2d 53,330 N.E.2d 678,72 O.O.2d 30
Parties, 72 O.O.2d 30 WHITT et al., Appellants, v. HUTCHISON et al., Appellees.
Docket NumberNo. 74-812
Decision Date02 July 1975

Page 53

43 Ohio St.2d 53
330 N.E.2d 678, 72 O.O.2d 30
WHITT et al., Appellants,
v.
HUTCHISON et al., Appellees.
No. 74-812.
Supreme Court of Ohio.
July 2, 1975.

[330 N.E.2d 679] Syllabus by the Court

1. A written release in general and unqualified terms, on advice of counsel, made and executed upon legal consideration between a party wronged and one or more of the persons charged with the commission of the wrong, is presumed in law to be a release for the benefit of all the wrongdoers. (Paragraph one of the syllabus of Adams Express Co. v. Beckwith, 100 Ohio St. 348, 126 N.E. 300, followed.)

2. If one has suffered personal injuries which thereafter were aggravated by the malpractice of an attending physician or surgeon, and then executes a valid, general and unconditional release to the original tort-feaseor, on advice of counsel, in full settlement for all present and future claims and causes of action, such release operates as a bar to an action against such physician or surgeon for such malpractice. (Paragraph two of the syllabus of Tanner v. Espey, 128 Ohio St. 82, 190 N.E. 229, followed.)

On March 1, 1969, James A. Whitt, Sr., was injured at Clear Fork Ski Resort in Richland County, Ohio. His injury was a compound fracture of his lower right leg. He was taken to Doctors Hospital, where he was treated by staff physicians.

On September 3, 1970, Whitt filed suit against Resorts, Incorporated, the operator of Clear Fork Ski Resort. That

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suit was settled, upon advice of counsel, and, on October 14, 1972, defendant and his wife signed an unconditional release of Resorts, Incorporated, for a consideration of $6,000. *

[330 N.E.2d 680] On March 22, 1973, Whitt filed suit against the hospital and the physicians who treated him alleging acts constituting malpractice on the part of the physicians and negligence on the part of the hospital; and alleging that this malpractice and negligence resulted in both an aggravation of the preexisting injury and the creation of new, separate and distinct injuries, namely, the infectious disease osteomyelitis and the removal of a portion of the right tibia without the knowledge or consent of plaintiff. Plaintiff's wife also joined in the suit to recover damages for loss of consortium.

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The Court of Common Pleas of Franklin County sustained defendants' motion for summary judgment and entered judgment for defendants.

Upon appeal, the Court of Appeals reversed the judgment of the Court of Common Pleas as to the allegations concerning new separate and distinct injuries, and, following the rule of Tanner v. Espey (1934), 128 Ohio St. 82, 190 N.E. 229, affirmed the judgment concerning the aggravation of the original injury.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Ronald D. Keener, Dayton, for appellants.

Charles J. Chastang and John H. Burtch, Columbus, for appellees.

STERN, Justice.

In paragraphs one and two of the syllabus in Tanner v. Espey (1934), 128 Ohio St. 82, 190 N.E. 229, the court held:

'1. If one who has suffered personal injuries by reason of another's negligence exercises reasonable care in obtaining the services of a competent physician or surgeon, and such injuries are thereafter aggravated by the negligence, mistake or lack of skill of such physician or surgeon, such aggravation is a proximate result of the negligence of the original tort feasor, and he is liable therefor.

'2. If one has suffered personal injuries which thereafter were aggravated by the malpractice of an attending physician or surgeon, and then executes a valid, general and unconditional release to the original tort feasor, in full settlement for all present and future claims and causes of action, such release operates as a bar to an action against such physician or surgeon for such malpractice.'

In the recent case of Travelers Indemnity Co. v. Trowbridge (1975), 41 Ohio St.2d 11, 321 N.E.2d 787, this court alluded to the holding in paragraph one of the syllabus of Tanner v. Espey, that negligence in causing bodily injury to a person is a proximate cause of the aggravation of that injury caused by the subsequent independent negligence of

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a physician in treating the injury. The court, at page 15, 321 N.E.2d[330 N.E.2d 681] at page 790, stated therein that '(t)he physician and the tortfeasor are not typical concurrent tortfeasors but, rather, are more in the nature of successive tortfeasors,' and held that their joint responsibility for the aggravation of the injury is equitably that of primary liability on the part of the doctor and secondary liability on the part of the original tortfeasor. No release was involved in the Trowbridge case, and therefore the second paragraph of the syllabus in Tanner was not at issue.

Tanner is on all fours with the facts of the instant case, and, if followed, requires the affirmance of the Court of Appeals. Appellants argue that the trend in the law of other states is away from the Tanner rule and that it should be overruled. We disagree. The difficulties and injustices of common-law rules regarding the effect of releases have been replaced in this state by principles of law which permit an injured party to settle that injury and action as he may intend. The effect of such a settlement upon the rights and obligations of others who might also be jointly liable for the injury is established, and is in accord with the holding in Tanner, and with the trend in the law allowing the expressed intention of the parties in releases and covenants not to sue to determine the liability of others jointly liable for the same injury. Therefore, no reason appears to modify the holding in Tanner.

At common law, the traditional rule was that a general release executed in favor of one charged with a wrong extinguished the right of action against all those jointly liable for the same wrong. The somewhat metaphysical theory of this rule is that for a single injury there is a single, indivisible cause of action, and that a general release for valuable consideration (or even, in some cases, for none), is a satisfaction of the injury and a release of the cause of action. Cocke v. Jennor (K. B. 1614), 80 Eng.Rep. 214; Price v. Baker (1959), 143 Colo. 264, 352 P.2d 90 (overruled in part by Cox v. Pearl Investment Co. (1969), 168 Colo. 67, 450 P.2d 60); Dougherty v. California Kettleman Oil Royalties (1939), 13 Cal.2d 174, 88 P.2d 690; Muggenburg v.

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Leighton (1953), 240 Minn. 21, 60 N.W.2d 9 (but, see, Gronquist v. Olson (1954), 242 Minn. 119, 64 N.W.2d 159);...

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58 practice notes
  • Bjork v. Chrysler Corp., No. 84-131
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1985
    ...the effect of a release by the original tortfeasor upon a successive wrongdoer, the Ohio Supreme Court said in Whitt v. Hutchison, 43 Ohio St.2d 53, 330 N.E.2d 678 "In some cases, it was even held that a release of one jointly liable acted as a release of all, even though the release contai......
  • Hansen v. Ford Motor Co., No. 21987
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 7, 1995
    ...of the joint tortfeasors, he or she was conclusively presumed to have surrendered it as against all others. See, e.g., Whitt v. Hutchison, 72 O.O.2d 30, 43 Ohio St.2d 53, 330 N.E.2d 678, 681 (1975) (discussing bases for common-law release In Bartlett v. New Mexico Welding Supply, Inc., 98 N......
  • Neves v. Potter, No. 87SC373
    • United States
    • Colorado Supreme Court of Colorado
    • February 13, 1989
    ...Corp., 702 P.2d 146 (Wyo.1985). The basis for the criticism was well put by the Ohio Supreme Court when it stated in Whitt v. Huchison, 43 Ohio St.2d 53, 330 N.E.2d 678 (1975), The injustice of the traditional rule was that it frequently acted to extinguish a cause of action which was only ......
  • Fox v. Nationwide Mut. Ins. Co., No. 17AP-745
    • United States
    • United States Court of Appeals (Ohio)
    • July 17, 2018
    ...state of facts then existing." Task v. Natl. City Bank , 8th Dist. No. 65617, 1994 WL 43883 (Feb. 10, 1994), citing Whitt v. Hutchison , 43 Ohio St.2d 53, 330 N.E.2d 678 (1975) ; Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus; Shifrin v......
  • Request a trial to view additional results
57 cases
  • Bjork v. Chrysler Corp., No. 84-131
    • United States
    • United States State Supreme Court of Wyoming
    • June 27, 1985
    ...the effect of a release by the original tortfeasor upon a successive wrongdoer, the Ohio Supreme Court said in Whitt v. Hutchison, 43 Ohio St.2d 53, 330 N.E.2d 678 "In some cases, it was even held that a release of one jointly liable acted as a release of all, even though the release contai......
  • Hansen v. Ford Motor Co., No. 21987
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 7, 1995
    ...of the joint tortfeasors, he or she was conclusively presumed to have surrendered it as against all others. See, e.g., Whitt v. Hutchison, 72 O.O.2d 30, 43 Ohio St.2d 53, 330 N.E.2d 678, 681 (1975) (discussing bases for common-law release In Bartlett v. New Mexico Welding Supply, Inc., 98 N......
  • Neves v. Potter, No. 87SC373
    • United States
    • Colorado Supreme Court of Colorado
    • February 13, 1989
    ...Corp., 702 P.2d 146 (Wyo.1985). The basis for the criticism was well put by the Ohio Supreme Court when it stated in Whitt v. Huchison, 43 Ohio St.2d 53, 330 N.E.2d 678 (1975), The injustice of the traditional rule was that it frequently acted to extinguish a cause of action which was only ......
  • Fox v. Nationwide Mut. Ins. Co., No. 17AP-745
    • United States
    • United States Court of Appeals (Ohio)
    • July 17, 2018
    ...state of facts then existing." Task v. Natl. City Bank , 8th Dist. No. 65617, 1994 WL 43883 (Feb. 10, 1994), citing Whitt v. Hutchison , 43 Ohio St.2d 53, 330 N.E.2d 678 (1975) ; Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus; Shifrin v......
  • Request a trial to view additional results

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