LEWIS v. JOHNSON

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District Court of Appeal, Second District, Division 2, California.

LEWIS v. JOHNSON et al.†

Civ. 11729.

Decided: May 27, 1938

Taylor, Kolliner, Bolton & Schwartz and Combs, Fritz & Murphine, all of Los Angeles, for appellant. W. I. Gilbert and W. I. Gilbert, Jr., both of Los Angeles, for respondent Carl G. Johnson. W. I. Gilbert, Fred O. Reed, and W. I. Gilbert, Jr., all of Los Angeles, for respondent Carl H. Gans.

From a judgment in favor of defendants predicated upon the granting of defendants' motion for a directed verdict in an action to recover damages for malpractice, plaintiff appeals.

The essential facts are:

August 9, 1936, plaintiff in an automobile accident received a fracture of both bones of his left leg. He was removed to the Seaside Hospital in Long Beach, California, and the fractures reduced by defendant doctors.

The injured leg did not make a satisfactory recovery and it subsequently became infected, necessitating the amputation of his left leg slightly below the knee. Thereafter plaintiff instituted the present action, alleging malpractice and naming as defendants Dr. Carl G. Johnson and Dr. Carl H. Gans (the doctors who reduced the fracture in his leg), the Seaside Hospital of Long Beach (the hospital in which the fracture was reduced), and Miriam Furlong (superintendent of nurses of the Seaside Hospital of Long Beach).

Briefly, plaintiff alleged his cause of action to be that the defendant doctors were guilty of malpractice in having placed a cast too tightly on his leg, and that the defendant hospital and defendant superintendent of nurses were negligent in not having advised the defendant doctors promptly after discovering that the cast upon plaintiff's leg was too tight.

On August 13, 1937, the trial of the action against all defendants commenced before a jury. August 21, 1937, Mr. Fritz, an attorney for plaintiff, telephoned Mr. Quail, claim superintendent for the United States Fidelity and Guarantee Company. During the conversation Mr. Quail inquired how much money plaintiff wanted for a covenant not to sue the defendant hospital and defendant superintendent of nurses. The amount named by Mr. Fritz he deemed too high, and no agreement was reached at that time. The following day the same parties had a telephone conversation in which Mr. Fritz said the plaintiff would accept $7,500 for a covenant not to sue, but Mr. Quail informed him the sum was too high and he would not consider paying more than $6,000. Later in the day Mr. Fritz made an appointment to see Mr. Quail and after some negotiations it was agreed that $6,000 should be paid to plaintiff for a covenant not to sue defendant hospital and defendant superintendent of nurses. Their conversation terminated, according to Mr. Quail, as follows:

“And he (Mr. Fritz) said something about the form of the covenant and I told him that the mechanics of the thing would have to be worked out between he and Mr. Hunter the next morning. He said that was fine. He then said, ‘You understand, of course, Mr. Quail, that this is not a settlement.’ I said, ‘That is the way I understand it.”’

The following morning, August 23, 1937, in the office of Mr. Hunter (attorney for the defendant hospital and defendant superintendent of nurses) he, Mr. Fritz, and Mr. Quail held a conference at which was presented a document executed by plaintiff entitled “Covenant Not to Sue and Covenant Not to Sue Further”. Mr. Hunter desired certain changes to be made in this document, which Mr. Fritz agreed to, stating that plaintiff was in a taxicab waiting for him and that he would telephone his office and have the notary public who had taken the plaintiff's acknowledgment meet them in front of the Hayward Hotel. This was done and the following document duly executed by plaintiff and his wife was then handed to Mr. Hunter:

“Covenant Not to Sue and Covenant Not to Sue Further.

“I, Dr. William E. Lewis, of the County of Los Angeles, State of California, having been on or about the 9th day of August, 1936, involved in an automobile accident on the Coast Highway, near the City of Huntington Beach, California, during the early morning hours of said day, and thereafter having been removed to the Seaside Hospital at Long Beach, California; and

“Whereas, the undersigned was there treated and cared for by the said Seaside Hospital and Dr. Carl G. Johnson and Dr. Carl H. Gans for a period of four to six weeks; and

“Whereas, the undersigned Dr. William E. Lewis, claims as a result of said treatment and care so administered to the undersigned at and by the said Seaside Hospital and the said Dr. Carl G. Johnson and Dr. Carl H. Gans the undersigned did sustain certain injuries and damages; and

“Whereas, the superintendent in charge of nurses at said hospital at said time was Miriam Fay Furlong; and

“Whereas, said Seaside Hospital of Long Beach, Ltd., a corporation, (hereinbefore referred to as Seaside Hospital) and said Miriam Fay Furlong, desire from the undersigned an agreement and covenant not to sue and a covenant not to sue them or either of them further, and/or prosecute any suit or suits now pending against them by the undersigned in connection with said treatment, care injuries and/or damages;

“Now therefore, in consideration of the sum of Six Thousand ($6,000.00) Dollars, the undersigned hereby promises and agrees that he will not sue and/or sue further the said Seaside Hospital of Long Beach, Ltd., a corporation, and/or the said superintendent in charge of nurses at said hospital, namely, Miriam Fay Furlong, or either of them, nor prosecute any action or actions now pending against them, nor either of them, for or on account of any injuries or damages which the undersigned now has or may hereafter have or have on account of said injuries sustained in the accident above mentioned, and the undersigned hereby does covenant and agree to hold said Seaside Hospital and said Miriam Fay Furlong, and each of them, harmless from any liability, claims, demands, costs, charges and expenses incident to any claim or claims arising out of said accident, treatment, care, or the injuries or damages sustained by the undersigned in connection with the said accident, treatment and care.

“It is further agreed and understood that the undersigned does not in any manner or respect waive or relinquish any claim or claims against any other person, persons, firm, firms, corporation or corporations other than herein specifically named, and it is further understood by the undersigned that said Seaside Hospital of Long Beach, Ltd., a corporation, and said Miriam Fay Furlong, and either of them, do in any manner or to any extent admit any liability or responsibility for the above accident, treatment, and/or care, or the consequences thereof, and that the execution of this document shall not be in any manner construed contrary to the provisions of this paragraph, as herein specified.

“In witness whereof, I have hereunto set my hand this 23 day of August, 1937. Dr. William E. Lewis.”

Thereupon Mr. Quail asked Mr. Hunter if the document was satisfactory and was informed it was. Mr. Hunter then directed him to give Mr. Fritz a draft for $6,000. After Mr. Fritz received this draft Mr. Hunter inquired of him, “How are we going to take care of this matter? Is it going to be necessary for me to come up into court?” to which Mr. Fritz replied, “No, I have no intention of proceeding further against the Seaside Hospital or the nurse. I will give you a dismissal as to those defendants.”

Mr. Fritz then handed to Mr. Hunter a dismissal reading as follows:

“In the Superior Court of the State of California in and for the County of Los Angeles

“William E. Lewis, Plaintiff, vs. Carl G. Johnson, et al., Defendants.

No. 410,617 Dismissal

“To the Clerk of Said Court: You will enter the dismissal of the above entitled action against Seaside Hospital of Long Beach, Ltd., a corp., and Miriam Fay Furlong only. Los Angeles, Calif. Aug. 23, 1937. Combs, Fritz & Murphine By: Paul J. Fritz, Attorneys for Plaintiff.”

Plaintiff, his attorney, Mr. Hunter, and Mr. Quail then proceeded to the courtroom where the trial was pending and, upon defendant doctors' attorneys asking permission to file an amended pleading alleging that plaintiff had settled his case with one of the joint tort–feasors and had thereby released all of the defendants, the following ensued:

“The Court: Do you want to be heard, Mr. Fritz?

“Mr. Fritz: Yes, if the Court please, there is nothing before the Court to show there has been any settlement or release. The facts are there is no settlement, there is no release. We will state to the Court there has been executed for a consideration a covenant not to sue and covenant not to sue further or prosecute any action which has been commenced as far as it affects the Seaside Hospital or May Furlong. It is not by way of settlement. * * *

“The Court: You refer to a dismissal?

“Mr. Fritz: I state now I dismissed the action so far as the Seaside Hospital is concerned and so far as the defendant May Furlong is concerned. * * *

“Mr. Hunter: In so far as the Hospital is concerned, if your Honor please, if there is any reason that either Mr. Gilbert or Mr. Fritz would like me to remain I would be glad to remain, if there is any reason, to explain anything surrounding the giving of this instrument. On the other hand, if there is not, I will be available in the office and I would like to be excused. It is my understanding that in so far as the Seaside Hospital and Miss Furlong are concerned you will dismiss as to them.

“Mr. Fritz: I have dismissed.

“The Court: There is no dismissal in the files. I presume it was filed in the Clerk's office and it has not come through yet.

“Mr. Fritz: Mr. Hunter has the dismissal in his office. * * *

“Mr. Hunter: As soon as the Clerk comes in we will file the dismissal.

“The Court: Let me see the dismissal. The Court now orders the dismissal filed.

“Mr. Hunter: Is there any reason for my remaining?

“The Court: Not as far as the Court is concerned.

“Mr. Gilbert: There isn't as far as we are concerned except with the agreement that you keep yourself available so if we do need you we can call you.”

The trial of the action thereafter continued as against the doctor defendants only until August 27, 1937, upon which date the trial judge granted defendant doctors' motion for a directed verdict and a judgment in their favor was accordingly entered.

This is the sole question necessary for us to determine:

Do the foregoing facts constitute a retraxit?

This question must be answered in the affirmative. A retraxit (he hath withdrawn) ensues when plaintiff, if appearing in propria persona, or his attorney, if he is represented by counsel (Merritt v. Campbell, 47 Cal. 542, 545; Westbay v. Gray, 116 Cal. 660, 666, 48 P. 800; Chase v. Van Camp Sea Food Co., Inc., 109 Cal.App. 38, 46, 292 P. 179; Bogardus v. O'Dea, 105 Cal.App. 189, 193, 287 P. 149), after an action is commenced (Lowry v. McMillan, 8 Pa. 157, 163, 49 Am.Dec. 501), in open court voluntarily renounces his suit or cause of action. III Blackstone's Commentaries, sec. 374d, vol. 2 Jones Ed. (1916) 1885; Merritt v. Campbell, 47 Cal. 542, 545; Chase v. Van Camp Sea Food Co., Inc., 109 Cal.App., 38, 46, 292 P. 179; Sheffer v. B. B. Perkins & Co., 83 Vt. 185, 75 A. 6, 7, 25 L.R.A.,N.S., 1313.

It is clear that each of the elements necessary for a retraxit are present in the instant case. Plaintiff's attorney, Mr. Fritz, in open court after the action had been commenced voluntarily dismissed the cause of action against the defendants Seaside Hospital of Long Beach and Miriam Furlong. The document denominated “Covenant Not to Sue and Covenant Not to Sue Further” is mere surplusage, in view of the uncontradicted evidence which discloses that all of the elements necessary for a retraxit were present.

It is a maxim of law that “the law respects form less than substance.” Sec. 3528, Civ.Code; Waters v. Pool, 149 Cal. 795, 804, 87 P. 617. Hence, it is evident that it was in fact the intention of the plaintiff to release the defendants Seaside Hospital of Long Beach and Miriam Furlong from any and all liability on the cause of action alleged in the complaint as amended. Though justice may be symbolized as having a hoodwink over her eyes, thus denoting that she deals impartially with those who appear before her, justice is not blind and the parties may not by their words change the legal consequences flowing from their acts. This court will not say that black is white because the parties so designate the colors when the facts show to the contrary.

The attempted reservation of a cause of action against the remaining defendants was ineffectual and void. It is settled that a retraxit as to one joint tort–feasor releases all of the joint tort–feasors (Bogardus v. O'Dea, 105 Cal.App. 189, 192, 287 P. 149; 22 Cal.Jur.[1925] 763, sec. 12; Vol. 2 Bancroft's Code Pleading Practice and Remedies, Ten Year Supp. [1937] 1604, sec. 537), irrespective of the attempted reservation of a cause of action against some of the tort–feasors and regardless of the intention of the parties. Flynn v. Manson, 19 Cal.App. 400, 403, 126 P. 181.

In Bogardus v. O'Dea, supra, at page 192, 287 P. at page 150 this court said:

“According to the allegations of the original complaint, all three of the defendants joined in the commission of the tort––giving rise to this cause of action, and hence a retraxit of the cause of action in favor of any of them operated as a release of all of them. As said in Chetwood v. California Nat. Bank, 113 Cal. 414, 45 P. 704, 707: ‘While plaintiff may sue one or all of joint tort feasors, and while he may maintain separate actions against them, and cause separate judgments to be entered in such actions, he can have but one satisfaction. Once paid for the injury he has suffered, by any one of the joint tort feasors, his right to proceed further against the others is at an end. Where several joint tort feasors have been sued in a single action, a retraxit of the cause of action in favor of one of them operates to release them all. The reason is quite obvious. By his withdrawal, plaintiff announces that he has received satisfaction for the injury complained of, and it would be unjust that he should be allowed double payment for the single wrong. It matters not either whether the payment made was in a large or in a small amount. If it be accepted in satisfaction of the cause of action against the one, it is in law, a satisfaction of the claim against them all.’ (Italics ours.) In Flynn v. Manson, 19 Cal.App. 400, 126 P. 181, the action was against several defendants for the recovery of damages for tort. The plaintiff dismissed as to one of the defendants, the dismissal however, containing a provision that it was not the intention of the plaintiff to release the other defendants from liability. The remaining defendants moved for dismissal of the action as to them, upon the same ground as that urged in the instant case. Affirming the judgment of dismissal which followed the order granting this motion, the court held that the release, notwithstanding the saving clause, was a discharge, not only as to the defendant as to whom the dismissal was filed, but as to his codefendants. To the same effect are the decisions in Tompkins v. Clay Street R. R. Co., 66 Cal. 163, 4 P. 1165, and Urton v. Price, 57 Cal. 270, 272.”

It therefore appears that plaintiff, having released two of the joint tort–feasors, as a matter of law released the other defendants from further liability with the result that the trial court properly directed the jury to return a verdict in favor of defendant doctors.

The conclusion which we have reached renders it unnecessary for us to discuss the various other points presented by counsel.

The judgment is affirmed.

McCOMB, Justice.

We concur: CRAIL, P. J.; WOOD, J.