
    Swenson et al., Appellees, v. Ewy et al., Appellants.
    (No. 77-781
    Decided June 28, 1978.)
    
      
      Messrs. Spangenberg, Shibley, Traci & Lancione, Mr. Norman W. Shibley and Mr. William W. Lamkin, for ap-pellees.
    
      Messrs, Porter, Wright, Morris & Arthur, Mr. Earl F. Morris and Mr. Craig D. Barclay, for appellant Ewy.
    
      Messrs. Lane, Alton & Horst, Mr. Collis Gundy Lane and Mr. Jack R. Alton, for appellant O’Sullivan.
    
      Messrs. Knepper, White, Arter S Hadden, Mr. Richard L. Miller and Mr. W. Locke McKenzie, for appellants The Hawkes Hospital of Mt. Carmel, Paisan and Herondey.
   Locher, J.

Appellants based their appeal upon the alleged application to the instant cause of the legal principle espoused in Whitt v. Hutchison (1975), 43 Ohio St. 2d 53, and Tanner v. Espey (1934), 128 Ohio St. 82, that “[i]f 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 tortfeasor, on advice of counsel, in full settlement for all present and future claims ánd causes of action, such release operates as a bar to an action against such physician or surgeon for such malpractice.”

The Court of Appeals, however, rejected the trial court’s holding that the legal precept enunciated in Tanner, supra; and Whitt, supra, was dispositive of the instant cause. Finding, instead, that appellee, the releasor, had shown by clear and convincing evidence that it was the intention of the parties to this form-type release to discharge only existing claims, not claims aganst hypothetical tortfeasors, the Court of Appeals equitably reformed the release to exclude the instant claim for which appellee had received no settlement and which was not intended to be released. See Sloan v. Standard Oil Co. (1964), 177 Ohio St. 149.

A strict adherence to our prior decisions, as urged by appellants, could arguably require a judgment in favor of appellants. However, a realistic, rational evaluation of the facts sub judice, our prior decisions and the pertinent principles of medical tort law necessitate an affirmance of the judgment of the Court of Appeals. As noted by the Court of Appeals, the instant cause presents a factual situation distinguishable in a relevant manner from the fact pattern of our two previous decisions. In Tanner, supra, the aggravation of the original injury was known and existed at the. time of the release, and in Whitt, supra, the release was executed subsequent to the injury and the treatment thereof, which was the subject of that malpractice action. In the instant cause, the general and unconditional release was executed when no one was aware of the injury, which necessitated the surgery, resulting in the alleged successive tort, a wrong for which the doctors and hospital would be primarily responsible, pursuant to our decision in Travelers Indemnity Co. v. Trowbridge (1975), 41 Ohio St. 2d 11.

A close examination of Tanner, supra, but more specifically of Whitt, supra, reveals an important facet of the legal precept, herein considered. In holding that the release barred the malpractice action against the physician, the court in Tanner expressed the logic behind its conclusion, at page 85, as follows:

“It is a fundamental rule of law that but one satisfaction can be exacted for the same demand. Billiter was liable. for all of the plaintiffs’s injuries including the aggravation thereof. She saw fit to give Billiter a release in full for- all claims and causes of action, presumbly because she. considered her total damages to be $7,000, and knew he .was. fully liable therefor.”

The- opinion, in Whitt, supra, further visibilizes this relevant concept alluded to in Tanner, supra. Although, in Whitt, supra, the court reiterated the second paragraph of the syllabus in Tanner, supra, as part of its syllabus, Justice Stern, in writing for the court, expressed the reason for: holding that the unconditional release of the original tortfeasor barred the action against the physician, in the following manner, at page 61:

“ * * * Such a release is presumed in law to be a release for the benefit of all the wrongdoers who might also be liable, and to be a satisfaction of the injury. That presumption stands unrebutted in the instant case, and bars spit to: recover for an alleged aggravation,of injuries.”

. More succinctly, the opinion in Whitt, supra, at page 60, provides: ...

“* * * In case of a release that is unqualified and absolute in its terms, a presumption arises that the injury has been fully satisfied. * * * This presumption may be. rebutted by the express reservation of rights against other parties * * * or the release may be avoided under the powers of equity, where the releasor can establish by clear and convincing evidence that it was executed' by mutual mistake. Sloan v. Standard Oil Co. (1964), 177 Ohio St. 149 * * *.”

In Sloan, supra, this court stated that “ [t]he dispositive inquiry in each case is what did the parties intend?-’ Recognizing that the wording of the release is not conclusive, the court went on to list certain factors that have keen judicially recognized as aids in determining the intent of the parties at the time the release was executed. Among those listed, at page 153, is “the contention that the injuries were in fact unknown at the time the release was executed * * Moreover, the affirmance in Sloan, supra, of the trial court’s finding that there existed a mutual mistake at the execution of the release was premised, in part, as indicated on page 154, upon the following:

“* * * [A]nd neither party was aware as to the nature, extent, or degree of gravity of the releasor’s injury.”

In the instant cause, there can be no question as to the intentions of the parties to the release concerning the alleged successive tortfeasors, since, at the time of the release, neither party was aware of the injury, of the alleged subsequent malpractice or of the consequent aggravation of the injury. Therefore, the release could not have possibly been entered into with a view towards protecting unknown successive tortfeasors for an injury, as of then unknown, or as compensation for the successive tort.

Where, as herein, the presumption is overcome by clear and convincing evidence of mutual mistake, in that the release was not actually intended to release the doctors and the hospital, who in the future may treat the tort victim, from the malpractice which the parties had no reason to consider, and the amount paid to the tort victim cannot possibly be viewed as full compensation for the claims against the original tortfeasor and the doctors, and the hospital as well, the executed, general and unconditional release does not discharge allegedly negligent treating physicians or hospital.

To find to the contrary not only would permit the successive torfeasors, who made no payment towards satisfaction of the injury they wrongfully inflicted, to reap a windfall because of a release that was not contemplated as protecting them, but would embark Ohio’s tort law on a novel and aberrant course contraposed to the modern principles of tort law: Those principles include “[t]he purpose of the law of torts * * * to adjust * * * losses and to afford compensation for injuries sustained by one person as the result of another [Wright, Introduction to the Law of Torts,. 8 Camb. L. J. 238 (1944)].” Our finding to the contrary would also deviate from the historical foundations of tort law. (See 1 Harper & James, Torts, at page XXXIX [1956], wherein it is stated that: “At the beginning of the twentieth century, we find the common law of torts as developed over the centuries, reflecting certain basic social policy: These policies represent deep-rooted notions of fairness and justice in human relations which have gradually become: crystallized into legal principles from the ethical, economic and political philosophy of the Anglo-American people. Policies thus evolved, in many ways, embody the aspirations and the ideals of culture with respect to the relations of one man to another in the community.”)

Accordingly; the judgment of the Court of Appeals is affifmed.

Judgment affirmed.

Herbert, Celebrezze and Sweeney, JJ.,. concur.

W. Brown and P. Brown, JJ., concur in the judgment.

O’Neill, C. J., not participating.  