*160 OPINION
By the Court,
This is an appeal from a summary judgment in favor of respondent, defendant below, in an action against him as a practicing physician and surgeon for $40,000 damages, growing out of his negligent failure to X-ray the left arm and pelvis of appellant, fractured in an automobile accident resulting from the negligence of one Shelby Hatch. The basis of the summary judgment was respondent’s third defense that appellant, for the sum of $4,000, had made a settlement with Hatch for all claims and damages in any way growing out of her personal injuries resulting from said accident, and releasing, acquitting, and discharging Hatch therefrom. Appellant admitted her execution of the release to Hatch, but asserted that said settlement was made with Hatch as the result of his negligence and of no other.
*161 Appellant fairly states the issue thus: “Whether or not a release by an injured party of one who negotiated a settlement in regard to the original injury precludes an action by the injured person against a physician or surgeon for negligent treatment of the injury where the injured person claims new and additional injury directly and proximately caused by the negligence and carelessness of the physician and surgeon and further where the injured party makеs claim that there has been no' compensation for the injuries received by reason of the negligence and carelessness of the said physician and surgeon.”
In pertinent part the release executed by appellant was as follows: “FOR AND IN CONSIDERATION of the payment to me/us at this time of the sum of FOUR THOUSAND AND no/100 Dollars ($4,000.00), the receipt of which is hereby acknowledged, I/we, being of lawful age, do hereby release, acquit and forever discharge Shelby Hatch of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the 15th day of May, 1958, at or near Wells, Nevada.
“I/we hereby declare and represent that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I/we have not been influenced to any еxtent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.
*162 “It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of Shelby Hatch, by whom liability is expressly denied.
“This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this rеlease are contractual and not a mere recital.
“I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act.
“WITNESS OUR hands this 30th day of January, 1961, at Provo, Utah.”
Just preceding the signatures, the following appeared: “CAUTION: This is a release. READ IT before signing.”
Many of the cases have been determined with direct consideration to the nature of the release given. We may therefore characterize the foregoing instrument at the outset. It is by its terms a release. It is by its terms personal, and releases by its terms all further claims against Shelby Hatch and against no one else. It does not in terms contain a reservation of the right to seek compensation from the doctors treating appellant’s injury, for negligence in such treatment. On the other hand, it is not a satisfaction and does not purport to acknowledge full compensation for her injuries.
Under such characterization we find two lines of authorities directly at war with each other. Most of these authorities accord recognition to the very fine annotation appearing at
*163 As against such majority rule, we find much respectable authority, both in the decisions and in the work of eminent text writers, to the effect that such a release does not of and in itself release the attending physicians or surgeons from damages arising out of their negligent diagnosis or treatment of the injury, unless it was the intention of the injured person so to release them and unless the compensation received from the first tortfeasor was in full compensation of the injury suffered— both of such items depending upon proof and not susceptible of determination as a matter of law, but being jury questions.
The great volume of case law on the subject prevents a consideration of all but a few of what we consider the leading cases. As the matter is one of first impression in this state, we are at liberty to base our decision in the instant case on the basic rules laid down by either line of authorities. We have concluded that the later and “more enlightеned” cases, as they have been often characterized, though constituting a numerical minority, are the better reasoned, and better promote the administration of justice.
The annotation in 40 A.L.R.2d lists 21 jurisdictions that have followed the majority rule and then proceeds (id. 1079) to analyze the theories of such cases supporting the majority rule.
There are numerous cases which discuss and support the majority rule and they include varying reasons why each particular court supported it. Perhaps it is an oversimplification but it appears to us that most of these reasons are in reality variations оf two basic themes. (1) Asa matter of law the original tort is considered to be the proximate cause of any injuries resulting from malpractice which occurred while treating the original injury, and consequently the original tortfeasor is liable for both injuries. Therefore a release of the original tortfeasor must release the physician, because if one liable for the whole claim is released, then the entire claim must also be extinguished. Sams v. Curfman,
Respondent says: “The split of opinion is acknowledged by all recent decisions and we choose to quote from one which did not rule either way, but it fully recognized the situation.” He then cites Trieschman v. Eaton,
ijs iji %
“The opinions relied on by the Trieschmans in California, Minnesota and New Jersey are by Courts which either had not before followed the rule that the release of one concurrent or successive tortfeasor discharged the other, or repudiated it in reaching the result that the injured person could sue the doctor, although he had compromised his claim against the original wrongdoer. These cases hold in essence that unless the release in terms discharges the other tortfeasors or the amount paid for the release was intended to be and was full satisfaction, the earlier settlement does not bar the subsequent suit.”
*165
Respondent then cites the case of Farrar v. Wolfe,
We turn, then, to an examination of the аuthorities and texts supporting the opposite rule, which we are inclined to follow.
We must preface this by noting that appellant does not controvert the statement that it is well-settled law that the original tortfeasor is liable for the malpractice of the attending physicians.
In Wheat v. Carter,
In Ash v. Mortensen,
“Plaintiff urges that under general principles of tort law the release of Wubben in consideration of part payment of the judgment against him does not bar this malpractice action against defendants who allegedly were negligent in treating the injuries inflicted by Wubben. Defendants, on the other hand, contend that since a person should not be twice compensated for the same injury and since plaintiff could have recovered comрensation for damages resulting from the alleged malpractice in the action against Wubben, the release of Wubben and the satisfaction of the judgment in that action are a complete defense to this action.
“It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medicаl treatment and holds him liable therefor, [citations] But the fact that plaintiff could have obtained full compensation for all damages in the action against Wubben, the original *167 wrongdoer, does not establish that she has been so compensated. The independent and successive acts of Wubben and defendant doctors, differing in time and place of commission as well as in nature, produced two separate injuries and gave rise to two distinct causes of action. Plaintiff was at liberty to sue Wubben for damages resulting from the original injury alone, and to sue defendants for damages resulting from the additional injury оr aggravation, in separate actions; and the order in which such actions might be brought would be immaterial, [citations] The plea of former recovery, therefore, involves a consideration of what the injured party did in fact recover in her action against the original wrongdoer rather than what she could have recovered therein. Wheat v. Carter,79 N.H. 150 ,106 A. 602 ; Parkell v. Fitzporter,301 Mo. 217 ,256 S.W. 239 ,29 A.L.R. 1305 , supra; Staehlin v. Hochdoerfer, Mo. Sup.235 S.W. 1060 ; cf. Smith v. Coleman,46 Cal.App.2d 507 ,116 P.2d 133 ; Viita v. Dolan (Viita v. Fleming),132 Minn. 128 ,155 N.W. 1077 , 1080,L.R.A. 1916D, 644 , Ann.Cas. 1917E, 678.
“Defendants insist, however, that without regard to the evidence introduced in the action against Wubben, and thus without regard to the nature and extent of the recovery therein, the release of Wubben from all liability operated to discharge them from liаbility for any negligent aggravation of the original injury. In their view, the amount of damages sustained by plaintiff, the sum received as consideration for the release, and the relation between the two, the intention of the parties, and the fact that Wubben and defendant doctors are independent rather than joint wrongdoers, are immaterial. In other words, defendants seek to substitute a rule of law for the factual defense of double recovery. The rule contended for has been adopted in a number of jurisdictions. [citations] But the conclusion that the release of the original wrongdoer releases thе attending doctor from liability for malpractice has been reached by treating the independent wrongdoers as joint tort feasors or applying, by analogy, the common-law rule of unity of discharge affecting joint tort feasors. The common-law *168 rule of unity of discharge is based on the concept of the unity of a cause of action against joint tort feasors, and its application to the facts of the present case would give the independent tort feasors herein an advantage wholly inconsistent with the nature of their liability. Moreover, the rule contended for by defendants would stifle compromises, favored in the law, inasmuch as the injured person could not effect a settlement with the original wrongdoer -without surrendering his separate cause of action against one who, by his independent tortious act, aggravated the injury.
“A release of a cause of action against a wrongdoer is not a release of a separate or distinct cause of action against another independent wrongdoer. It follows that the mere release of Wubben from liability did not result in the discharge of the cause of action against defendants. We are of the opinion that a release of the original wrongdoer should release an attending doctor from liability for aggravation of the injury ‘if there has been full compensation for both injuries, but not otherwise.’ Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413, 435.”
The same rule was applied in Dickow v. Cookinham,
In Couillard v. Charles T. Miller Hospital, Inc.,
‡ * ‡ ‡ ‡
“We think that considerations of practical justice require us to say that a plaintiff should not be compelled to surrender his claim for relief against a wrongdoer unless he has intentionally done so, or unless he has received full compensation for his claim. * * * [T]hese are questions of fact to be resolved by the jury.
* * * * *
“We, accordingly, hold that, in so far as [the previous cases] do not permit parol proof that a party to a release never was compensated for and never intended to release claims based on injuries caused by a subsequent tortfeasor for which the releasee is also liable because of the rules of proximate cause, those decisions are overruled.”
In Bolick v. Gallagher,
“Whether they shall become entitled to credit for payments made under the releases depends upon findings made at the trial with reference to the principles discussed herein.”
In Daily v. Somberg,
“If the release of Dealer’s Transport Company was actually intended to release the doctors, or if the amount paid by Dealer’s actually constituted full compensation for the plaintiff’s claims against Dealer’s and the doctors or was accepted as such, then the plaintiff may not fairly or equitably seek further recovery. * * * The release to Dealer’s did not on its face suggest that there was any intent to release the doctors nor did it suggest that the plaintiff received full compensation for his injuries. On the contrary, it named only Dealer’s, its successor corporation and its employee Eliot, as the releasees and it expressly set forth that the sum paid to the plaintiff was in settlement and compromise and without admission of liability. * * * [W]e are satisfied that, at least here, where the release disclosed on its face that it was given to the named releasees who had denied liability and had made payment by way of compromise and settlement, the alleged wrongdoers, who were not parties to the release and had made no *171 payment towards satisfaction of the plaintiff’s injuries, may fairly be called upon to show that the release was intended to discharge them or that the plaintiff had received full compensation.”
In McKenna v. Austin,
In Black v. Martin,
“As each tort-feasor is liable for the entire damage, if one sees fit to secure acquittance for himself by compromise with the injured person, he does no- wrong to those who are jointly liable with him. How can they complain if he has paid part of the damage? They are not prejudiced by the settlement, but on the contrary are benefited, for each is entitled to have the amount of any judgment rendered against him reduced by the amount paid by his cotort-feasor.
“The law favors compromises. This is especially true in tort actions, not only because they relieve the labors оf courts, and avoid expense, but also because, where the parties agree between themselves upon a settlement of the claim, the result reached is frequently a more equitable adjustment than is possible to be had in a court of law. 10 Virginia Law Review, 72.” In support the court quotes at length from Carey v. Bilby,
Hicklin v. Anders,
(formerly chief justice of this court), speaking for the United States Circuit Court of Appeals, Ninth Circuit, in Rudick v. Pioneer Memorial Hospital,
Prosser treats the subject in this manner:
“As to the release itself, the common law rule has been changed by statute in a number of states. Without a statute a strong minority of the courts have held that the release does not discharge the second tortfeasor if it provides in terms that it shall not do SO'. Some of them even have recognized an accompanying oral agreement to that effect, and have met the objection of the parol evidence rule with the argument that the second tortfeasоr is not a party to the instrument. Still others have accomplished the same result by construing a release with reservation of rights against others as nothing more than a covenant not to sue.
“The only desirable rule would seem to be that a plaintiff should never be compelled to surrender his cause of action against any wrongdoer unless he has intentionally done so, or unless he has received such full compensation that he is no longer entitled to maintain it. Where there has been such full satisfaction, or where it is agreed that the amount paid under the release is so received, no claim should remаin as to any other tortfeasor; but these are questions of fact, and normally to be determined by the jury, where the amount of the claim is unliquidated. * * *” Prosser, Torts 245 (2d ed. 1955).
Professors Harper and James seem to be in complete agreement with Prosser. 1 Harper and James, The Law of Torts § 10.1, p. 711 (1956).
Both Prosser and Harper and James properly indicate the clear distinction between a release and a satisfaction, and we agree with their conclusion that the confusion of many of the courts is due to a failure to recognize this distinction. They also treat of a distinction between a release аnd a covenant not to sue. Our *174 conclusion in the instant case could probably be supported by treating the release as a covenant not to sue in accordance with the reasoning contained in some of the cases. However, we do not choose to take this approach.
In support of our adoption of what is referred to as the “minority rule” or “the modern rule” or “the more enlightened rule” we might have justifiably simply rested our conclusion upon the following: “We have here two successive torts, the first by Hatch, the second by the doctor. The torts were neither joint nor concurring. They were distinct, separate and independent. No pertinent logical conclusion can be drawn from the states ment that the doctor’s alleged tort would not have occurred ‘but for’ Hatch’s tort. Plaintiff settled with Hatch and with him alone and with no one else, for the injuries negligently caused by him, and by him alone and by no one else. This is the clear purport of the ‘release’ executed by appellant. No double recovery would follow. We reject the contrary conclusion (based on a legal concept that has in our opinion been thoroughly discredited) that ‘because the originаl tort is the proximate cause of the added damages resulting from the negligence of the doctor,’ and plaintiff could have recovered same in an action against Hatch, her release of Hatch released the doctor.”
Respondent seeks to sustain the summary judgment by reason of the Uniform Joint Obligations Act, NRS 101.010-101.080. Appellant asserts that the act has no application, because the torts here involved were separate and distinct torts. 101.020 defines “obligation” as including liability in tort, and 101.030 defines the effect of a judgment against one or more of several obligors, or against one or more joint, or joint and several obligors, as not discharging a co-obligor not a party to the proceedings wherein the judgment was rendered. The last-named section does not apply here, as there were no proceedings and there was no judgment. Section 101.040 merely provides that the amount or value of any consideration received by the obligee *175 from one or more of several obligors or of joint, or joint and several obligors, in whole or partial satisfaction, shall be credited to the extent of the amount received. Section 101.050 provides for a release or discharge of one obligor, but reserving in writing the right tо proceed against co-obligors, and subject to the provisions of 101.0^0, as noted above, and in the absence of a reservation of rights, shall discharge co-obligors only to the extent provided in NRS 101.060, which follows. That section then provides, under varying circumstances which on their face require the proof of facts, as to how a payment made by the first obligor shall be apportioned with reference to claims against co-obligors. Accordingly, the act cannot of itself support a summary judgment.
In remanding the case for trial it will be well to define the issues to be tried by the court. .
(1) Our construction of the release leaves no issue as to the intent of the plaintiff in executing same.
(2) Our rejection of the “majority rule” disposes of the special defense that plaintiff, by releasing Hatch, thereby released the defendant.
(3) The Uniform Joint Obligations Act (NRS 101.010-101.090) has no application to the issues.
(4) As to compensation for her injuries, the jury may be instructed that plaintiff, by her compromise settlement with Hatch, has been fully compensated for the damages directly resulting from the latter’s tort (without stating the amount of such compensation), but not including damages alleged to be the proximate result of defendant’s alleged negligent diagnosis and treаtment, or diagnosis or treatment of her injuries.
(5) The issues, then, remaining to be tried will be the questions of defendant’s negligence, if any, and the damages to plaintiff, if any, proximately caused thereby.
Reversed with costs and remanded.
Notes
Overruled in Couillard v. Charles T. Miller Hospital, Inc., infra.
Overruled in Daily v. Somberg, infra.
Overruled in Bolick v. Gallagher, infra.
See footnote 3.
The court spelled out a formula in the second action for apportioning the recoveries in the first action. The dissenting opinion criticizes such formula. But whether or not the suggested formula should be adopted in any given case, avenues are available to the court in all cases to prevent a double recovery, which is one of the main supports of the foundation for the majority rule.