*1 (two cases). 26754, KNIGHT LOWERY 26756. Argued 8, 2, 1971 Decided December November
Rehearing 17, denied December 1971. Askew, Warfield, Mabie, Mabie, & Levy, L. Graff Lefferts Jr., Hicks, Orseck, Jay, Sherrell, Colson & Robert & Garden Jr., Clayton Jay, appellants. for Watson, Keenan, Lowe, Watson, Spence & G. Stuart Di- vine, Wilkin, Busbee, George Busbee & for appellee. Chief Justice. This case grant is before us
Almand, the writ of certiorari At Appeals. Court of issue is release, question: granted by injured this Does a in an automobile accident favor of the party responsible persons,” and "all other also a physician release alleged to negligent subsequent have been his treatment of the injuries? Jr., minor, Knight,
Jack D. and per- sustained serious 25, manent in an February automobile accident on 1967, Jr., Lowery, and was treated Dr. William D. 1, neurosurgeon, February April 25 until at which boy time the hospital. was transferred to his hometown again examining boy After had April no further Knights contact with the until this suit was commenced. Sr., Knight, individually
On June Jack D. and son, mother, guardian Knight, boy’s his Mrs. Boling, executed favor of Harold and Jack involved; and owner of the automobile Farm driver State Company, Bolings’ Mutual Automobile Insurance insur- carrier; return, and "all other In persons.” Knights ance *2 $10,500 a payment received which was the extent of Bolings’ liability coverage and medical with payment State Farm. signed by Knights
The release was a form pre-printed containing blank which were spaces type- inserted the Farm, Bolings written names of the and of State the date accident, of the and a brief description of the accident. Dr. Lowery was not named. The document is entitled "Release” and provides undersigned as follows: ". . . hereby and discharges leases forever Jack Boling, Boling Harold Farm and State Mutual Automobile Insurance Company heirs, executors, administrators, their agents and assigns, other persons, corporations and all firms or liable or who might liable, claimed be none of be whom admit lia- any bility all expressly deny any liability, from all any and claims, demands, actions, damages, causes of action or suits any kind or nature and particularly whatsoever ac- on all injuries, unknown, count of known and both to person property, and which have resulted or the future from an occurred develop accident which about the 24 day February, at or near Fitzgerald, Ben Hill Georgia, Jr., County, Knight, which accident Jack D. severe, undersigned minor son sustained permanent disabling and permanently injuries.
"Undersigned hereby declares the terms of this set- completely fully tlement have been and read understood voluntarily accepted and the purpose making for a full compromise adjustment and final and settlement of and any claims, otherwise, disputed all on account of the injuries mentioned, damages and for express purpose above further or additional aris- precluding forever claims ing out aforesaid accident.” Thereafter, Knights suit Dr. against Lowery filed negligence, alleging diag- that he had failed to professional nese and remove a subdural hematoma which developed treatment, during thereby causing his course of further in- jury Lowery gave to their son’s brain. Dr. as one of his de- release, asserting fenses the aforementioned it barred judge granted the action. The trial the doctor’s motion for summary basis, judgment made on that and the Knights appealed Appeals. Court of court, The Court of affirmed the trial Appeals holding, law,” a matter "purely as of contract the release was unambiguous, entitled, and that Dr. Lowery was as a donee beneficiary, rely upon to invoke the parol prevent evidence rule to its variance. granted the writ of certiorari and now reverse. Knights, by
We consider first whether releasing Bolings liability, State Farm from thereby were law, precluded as a matter of bringing suit for his alleged negligence in the subsequent *3 treatment injury. majority of their son’s A of the courts question which have considered this ruled have that such barred, an action physician’s unless the negligence has produced entirely an new injury. These cases are collected in annotations in found 39 ALR3d 260 and ALR2d 40 1075. Indeed, the annotations indicate that Georgia part is a of virtue of Edmondson v. Hancock. 40 Ga. majority by (151 114). App. decision, SE In that 1929 the Court of Appeals held that a physician employed by a railroad com pany was not liable to an employee company ag of the gravation for which company was responsible where employee had executed a release acknowledging by satisfaction the company of his damages. However, we have found no Supreme Court decision which directly in point. 260,
As noted in the in 264, annotation 39 ALR3d number formerly of courts which supported majority it, repudiated others, rule have while faced with the issue time, for the rejected minority first have it. The growing by injured view is that "a an party release of the one re- itself, not in the absence of sponsible injury for the does an intention on the language part indicative such by injured party against an action parties, preclude surgeon, at least unless negligently treating physician compensation injured party’s there has been full for the 260, now the mi- injuries.” adopt total 39 ALR3d 264. We nority view. ruled that a release executed in long ago
This court
favor
tortfeasor,
damages,
in full
acts also as a
joint
one
settlement
in
all other
Donaldson v. Car-
joint
favor of
tortfeasors.
(29
135).
michael,
underlying
The reasons
this
Here, and did physician the driver of automobile single injury, they are produce not act concert to Rather, joint they not tortfeasors. we conclude suc- tortfeasors, Lowery’s alleged negli- and that Dr. cessive damage, was gence, contributing while to the overall and created in favor of subsequent against action him. injured party separate cause of We are in full with the view taken the New York accord Prewitt, 12 N. Y. 2d Appeals Derby Court of 556), NYS2d 187 NE2d wherein is said: successive, rather wrongs independent "Their were so, had one joint, being than and this not action, causes separate two distinct cab of his vehicle and the negligent operation driver *4 in treat- alleged malpractice other the doctor for his the ing the fracture which the sustained in auto- plaintiff mobile It true that the could have been accident. is driver by the the aggravation held liable for the of caused above, liability negligence, doctor’s but as out that pointed but is any concept joint wrongs is not the result of wrongdoer rather of the familiar rule that a is product the reasonably consequences for the foreseeable responsible act, including negligent his tortious the conduct of others. defy it reason hold the lia- Conversely, physician would original wrongdoer ble for caused which carelessness, consequences were not the of his own and no suggests one that a release of the would completely doctor discharge original wrongdoer.
"Nor does the second asserted reason for the doc- presumption trine —the of full satisfaction —make sense in the presumptions context of this case. Irrebuttable have only their in the place public policy law but where demands inquiry cease. single Where cause action is liability wrongdoer of one is identical with that other, erecting there be warrant such a barrier However, where, here, suit after settlement. neither present, these elements is there no or justification is basis law, for preventing plaintiff, by an artificial rule of recovering compensation the full she which would injuries.” otherwise be entitled for her alleged wrongs The of the driver of the automobile and of successive, being the doctor joint, rather than a release of the (a) other, would not release the unless all in- damages, (b) doctor, cluding full, those caused paid were parties thereby intended to release both tortfeasors. As question damages, up to the show $10,500 settlement did not him in compensate full injuries. connection, for his In this we note that Jack D. Sr., Knight, asserted in an filed in opposition affidavit to Dr. Lowery’s summary motion for judgment, his son’s medi- $37,000. expenses cal related were excess of remaining question The whether to the thereby settlement intended Lowery to release Dr. from all liability, only to settle the matter with respect Bolings and State Farm. If the release be taken at face value, is clear that not whole liability. world is freed from The alternative is to permit introduction of evidence to determine if this was *5 agreement. of the to the parties the actual intention rule, to parol require The evidence which is too basic authorities, in is that the absence of acci- simply citation of dent, mistake, fraud or evidence is to inadmissible parol However, vary or add to the terms of a written contract. case, usually there are to A exceptions this rule. generally number of states that the parol have evi- held contract, apply stranger dence rule does not to a to a and that in specifically parol evidence is admissible favor of or a against stranger a release. These cases are collected in at an annotation 13 ALR3d 313. are that opinion presents of the the case of a release rule, general
an to the and that in a exception such case parol applicable only evidence rule is to the parties Lowery the instrument to their privies. was not a party agreement Knights between the and the Bol- settlement, ings, he contributed and he nothing was reason, therefore, in why not named the release. We see no he share the Bolings should benefits conferred on the unless clearly such was the intention of the parties. that, stranger
This court has held "One who is a to a deed or other instrument in writing not bound contained, accordingly recitals of fact therein and has the right by parol to contradict the same evidence and show writing express that does not the real truth of the Dickey Grice, transaction to which relates.” 110 Ga. 291). SE Since evidence is admissible favor why a a stranger writing, we see no reason should against Accordingly, not also be admissible him. we hold against be admitted favor of or parol evidence a stranger to release to ascertain true intention of the with regard persons to those who were to be bound or covered the release. Since the release this case world, facie releases all the is on the prima burden to show that Dr. was not included. concur, Felton, Judgment except reversed. All the Justices J., specially Undercofler, JJ., who concurs and Grice who dissent. Justice, concurring judgments in the Felton, dissenting from second opinion, of the division
first opinion. division holding further in steps go step
I1. would as a mat- appellees permissible complaints ter of law: reason such
First, and obvious simple *6 completely devoid in this case is is relied on lease as cannot claim parties law the As a matter of consideration. appel- release as to the there is consideration that tortfea- original relief of the is the lee. The consideration causing the collision resulting from claims sors from not appellants were which appellants he or can claim that to the release party Neither involved. an un- agent representative self-appointed she is a is not liability party, a who to release from person known from original injury, in tort or otherwise for liable wholly yet committed for a tort not damages separate The to original injuries. parties disconnected from liability and cause a fictionally create such a cannot legitimate con- legal, to a moral release therefrom be by either sideration, anticipated not where it could be imagi- a make real catch-all a release cannot party. Such and distinct from separate from a tort nary release It released. identifying party original tort and without a third- may where supported, true that a contract be is concerned, by a consideration furnished beneficiary is party subject matter and the contract where the by party a to clearly shows identified where the contract beneficiaries are the consideration be- necessary ingredients all of a that provides the third The law now party. stowed on name he in his own beneficiary sue third-party a bestowing party parties whom the party must be a wide They it. cannot cast out right to do benefit have from they represent do not net and release someone whom to except concern they possible with which have no a claim the circum- business. Under parties’ meddle with other construction, case, judicial a matter of in this stances consideration, for the reason totally without is the contract for a release right provide to had no in the collision who was not involved anyone liability of injuries. tortious causing original par- insofar as all in this case of release 2. The contract do policy. To concerned, against public patently is ties are is so re- do in this case seeking appellees what play and fair justice scruples to the conscientious pulsive length would be su- greater at question argue evidence authorizing parol The idea of even perfluous. in this case as we have for such release justification show says palatable the law is not What to me unthinkable. evidence. made so cannot be ruling, majority under the conflicting, If the evidence defeated could still be appellants the claims and without considera- policy against public which is result have is to show appellants tion. The burden not tortfeasor did from the received the amount injuries suf- for the total fully compensate completely fered. to considera- 1 with reference
Going
my
Division
back
*7
contract,
sug-
it has been
beneficiary
third-party
in a
tion
in such a
consideration
I have said about
gested
what
nothing pro-
the reason that
my mark "for
case is wide of
the first man
large
a
sum to
promising
man from
hibited a
not have to
would
promise
moon.” Such
who reached the
the
gratuitously donated
the
performed
promisor
be
unless
discovered, or
identity was
a man after his
money to such
ac-
promise,
the
beneficiary knew about
the third-party
the
accepting
the moon after
went
to
cepted the offer and
offer be-
did know of such an
made him. If he never
offer
his return
upon
heard about
trip
fore his
recover the
complaint
in a
prevail
not
earth he could
ground
upon
could defend
because
offeror
gratuity
the failure
liable for
One cannot be
lack of consideration.
of
promise
gift
make a
unless
keep
promise
consideration.
based on a valuable
past
in the
have construed
It
seem that courts
would
releasing every possible
leases as
could be
who
fished
into
a rule
responsibility,
"unity
under
called the
of release
mind,
rule.”
idea in
With
seems
the courts in
hereinafter
changed
cases
cited
their states’ laws be-
cause of
unfavorable
of
opinion
they
what
had been
doing
exactly
and held
the majority
what
now holds (except
release).
as to the
evidence as
to the intention
The cases below hold that
the release does not cover the
treating physician’s
tort after the
tort in the caus-
ing
Prewitt,
Derby
collision.
v.
12 N. Y. 2d 100
556);
(Alaska
State,
Young
1969);
NE2d
P.
2d 889
(Texas
Klingensmith,
1971);
McMillen v.
Undercofler, jority minority has misconstrued the concerning rule general of a effect release. As in 39 stated ALR3rd "Thus, a sizable number of courts support now a mod ern rule that a an injured party of the one re sponsible the absence of itself, for the does not of language indicative an such intention on the part parties, preclude an injured party action negligently treating physician surgeon, at least unless there been full has compensation injured party’s total injuries.” (Emphasis supplied). In the instant case the intention of the parties is clear. The contract shows their intention to release "all other persons, firms or corporations liable or who might be claimed to be liable ... on account all injuries, unknown, known and . . . which have re sulted or in the develop future from an accident which on occurred . . . for purpose making full and final compromise adjustment and settlement of any all claims, disputed otherwise, of injuries and account mentioned, damages above the express purpose precluding forever further or additional claims arising *8 out of the aforesaid accident.”
The release permits no conclusion other than the intended the physician. defendant (236 Furthermore, Derby Prewitt, 12 Y. v. N. 2d 100 (3 656), dissenting) relied judges 187 NE2d NYS2d authority their conclusion is not for majority upon wrongdoer was appears since of an language There indicative in that case. was no leased holding Derby v. The limited intention to release others. in three months later Prewitt, was demonstrated supra, Landau, 12 N. Y. 2d 362 Corp. Commercial v. Oxford 230), entire court held NE2d when the NYS2d except those "'any person that a release of whomsoever’ to admit of evi- precise too clear and named is specifically intended exclude the defendants dence category.” from this all-inclusive in concurs this
I am authorized to state that Justice Grice dissent. CEMETERY, INC. BLANCHARD v. WESTVIEW
26758. judg- affirmed Appeals Justice. The Court of Felton, summary judg- granting a Superior ment of Fulton Court here, in defendant, the action of appellee ment for here, Blanchard, pred- appellant Mrs. Hazel plaintiff, her moving body an intentional tort icated on monument, husband, Blanchard, Paul late Ceme- another. Blanchard Westview grave site to 399). (183 SE2d tery, App. 124 Ga. the writ certior- for granted plaintiff’s application out
ari, ably pointed reverse. As was and now we (Division 1 of which Judge Pannell dissenting opinions Whitman) Evans, Judge by Judge was concurred qualification, with one hereby adopt we opinions which raised a claim and evidence complaint stated by material fact for determination issues of genuine permit the issue of whether jury, disregarding even under the required and reinterment was the disinterment law. State concur.
Judgment reversed. All the Justices