
    Elizabeth H. Derby, Appellant, v. Pro V. Prewitt, Respondent.
    Argued October 22, 1962;
    decided December 31, 1962.
    
      
      Paul 8. Edelman and Harry E. Kreindler for appellant.
    I. A release to the original wrongdoer will not bar a contract action against a doctor who is charged with malpractice and breach of contract to perform medical services with due care. (Von Blumenthal v. Cassola, 166 Misc. 744, 254 App. Div. 857.) II. Misstatements and misrepresentations as to plaintiff’s physical condition by defendant make the release to a third party ineffective as to this defendant. (Rector, Churchwardens & Vestrymen of St. James Church v. City of New York, 261 App. Div. 614; Farrington v. Harlem Sav. Bank, 280 N. Y. 1.) III. No case holds that the release to a third party releases a doctor for acts of malpractice following execution of the release. (Farrington v. Harlem Sav. Bank, 280 N. Y. 1; Kropp v. Diamond K. Markets, 207 Misc. 1030; Le Francois v. Hobart Coll., 262 App. Div. 802, 287 N. Y. 638.) IV. The Debtor and Creditor Law provides that as to the claims for malpractice and for injuries over and above the initial injury a release given to a third party is no defense if the claims were not known at the time the release was given. (Gaylor v. Burroughs, 248 App. Div. 915, 273 N. Y. 606; Bossong v. Muhleman, 254 App. Div. 738.) V. The equities are in favor of plaintiff insofar as not giving effect to the release. (Whittemore v. Judd Linseed & Sperm Oil Co., 124 N. Y. 565; Milks v. McIver, 264 N. Y. 267.)
    
      BichardF.Shandell,JohnJ, O’Connor,Desmond T. Barry and Joseph J. Brophy for respondent.
    I. A release to an original wrongdoer is a bar to an action for malpractice against a physician charged with aggravating the original condition. (Gilbert v. Finch, 173 N. Y. 455; Milks v. McIver, 264 N. Y. 267; Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410; Retelle v. Sullivan, 191 Wis. 576; Haney v. Cheatham, 8 Wn. [2d] 310; Rector, Churchwardens & Vestrymen of St. James Church v. City of New York, 261 App. Div. 614; McBride v. Scott, 132 Mich. 176.) II. The Debtor and Creditor Law does not change the common-law rule. (Greenhalch v. Shell Oil Co., 78 F. 2d 942; Rushford v. United States, 92 F. Supp. 874; Bossong v. Muhleman, 254 App. Div. 738.) III. Plaintiff’s present action sounds in malpractice and is barred by the release. Plaintiff’s second cause of action sounds in tort, not contract. (Conklin v. Draper, 229 App. Div. 227, 254 N. Y. 620; Robins v. Finestone, 308 N. Y. 543; Colvin v. Smith, 276 App. Div. 9; Frankel v. Wolper, 181 App. Div. 485; Tulloch v. Haselo, 218 App. Div. 313.) IV. Alleged misrepresentations not pleaded do not create an estoppel. (Tulloch v. Haselo, 218 App. Div. 313; Ranalli v. Breed, 277 N. Y. 630; Frehe v. Schildwachter, 289 N. Y. 250.) V. The fact that the malpractice took place after the execution of the release would not change the result. (Miles v. New York Cent. R. R. Co., 195 App. Div. 748.)
   Fuld, J.

Upon this appeal from a dismissal of the complaint in an action against a physician for malpractice, we are called upon to decide whether a general release given by the plaintiff to the wrongdoer who caused her initial injuries also releases the physician who negligently treated those injuries.

. Struck by a taxicab in April of 1958, the plaintiff suffered a fracture of the femur. She was taken to a hospital and three days later was operated on by the defendant doctor. In December, 1958, while still under the doctor’s care and in reliance upon his assurances and representations that the fracture had healed and that she was on her way to a good recovery, she settled her claim against the cab driver. She received $8,000 and executed a general release in his favor.

Sometime later, according to the plaintiff, she learned that the doctor’s representations and assurances had been false and that he had been guilty, both before and after the execution of the release, of negligence and malpractice which resulted in a permanent shortening of her leg. The present action for damages in the amount of $75,000 followed. The defendant, urging that he was entitled to the benefit of the release given to the cab driver, moved for summary judgment dismissing the complaint. That motion was denied at Special Term, but the Appellate Division reversed and ordered the complaint dismissed. Citing the decision in Milks v. McIver (264 N. Y. 267), the Appellate Division apparently regarded the release to the taxicab driver as an absolute bar to any claim against the doctor under the so-called “ joint tort-feasor doctrine ”.

We must at the outset reject the plaintiff’s attempt to avoid the effect of the release by reliance upon the alternative theory of a breach by the defendant of an “ agreement ” to operate on and treat plaintiff with ‘ ‘ due care ’ ’. The cause of action alleged must be regarded for present purposes as sounding solely in tort, since “ The nature and origin of the liability asserted is * * * a liability for damages caused by negligence.” (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287, 303; see Rapp v. Myers, 291 N. Y. 709.)

It is settled that a wrongdoer is liable for all of the proximate results of his own tortious act, including (in a case such as the present) the aggravation of the original injury caused by the negligence of the physician. (See Milks v. McIver, 264 N. Y. 267, 270, supra; see, also, Matter of Meachem v. New York Cent. R. R. Co., 8 N Y 2d 293, 298; Prosser, Torts [2d ed., 1955], § 45, p. 230.) And, since a general release to the original wrongdoer would include the element of such aggravation of the injury, it is urged that such a release must be deemed to embrace any claim for the same element of damage against the negligent physician as well. Otherwise, the argument runs, the injured person would receive double satisfaction for a single injury.

The ancient common-law rule barred recovery against one joint tort-feasor if another had been released from liability. (See Walsh v. New York Cent. & H. R. R. R. Co., 204 N. Y. 58, 63; 1 Cooley, Torts [4th ed., 1932], § 83, p. 264; Note, 73 A. L. B. 2d 403, 413.) With the gloss later placed upon it that the bar-is not available to the tort-feasor against whom rights had been reserved (see, e.g., Lucio v. Curran, 2 N Y 2d 157, 162; Gilbert v. Finch, 173 N. Y. 455, 466), the rule has survived to this day in many jurisdictions despite strong attacks upon it by modern commentators. (See, e.g., Prosser, Torts [2d ed., 1955], § 46, pp. 243-246; 1 Harper and James, Torts [1956], § 10.1, pp. 711-714; 2 Williston, Contracts [3d ed., 1957], § 338A, pp. 722-725; 4 Corbin, Contracts [1951], § 931; Wigmore, Belease to One Joint-Tortfeasor, 17 Ill. L. Bev. 563; Havighurst, Settlements and Co-Obligors, 45 Corn. L. Q. 1.) Thus, Dean Wigmore has denounced the doctrine as a “surviving relic of the Cokian period of metaphysics ” (17 Ill. L. Bev. 563), Dean Prosser has criticized it as “ at best an antiquated survival of an arbitrary common law procedural concept ” (Torts, p. 244) and Mr. Justice Butledge, speaking for the Court of Appeals for the District of Columbia, observed that “ The rule’s results are incongruous. More often than otherwise they are unjust and unintended. Wrongdoers who do not make or share in making reparation are discharged, while one willing to right the wrong and no more guilty bears the whole loss. * * * Many, not knowing this, accept less only tó find later they have walked into a trap. The rule shortchanges the claimant or overcharges the person who settles, as the recurring volume and pattern of litigation show. Finally, it is anomalous in legal theory, giving tort-feasors an advantage wholly inconsistent with the nature of their liability. ” (McKenna v. Austin, 134 F. 2d 659, 662; see, also, Breen v. Peck, 28 N. J. 351, 356-357.)

That the release of one tort-feasor must necessarily release all other tort-feasors who are jointly liable for the injury can hardly be regarded as an inexorable principle when its consequences may be avoided by the simple expedient of a reservation, in the release of rights against the others. The ancient rule, on the contrary, rests upon two grounds: the first, that the injury resulting from the joint action of the wrongdoers is a single injury and constitutes basis for a single cause of action (see Duck v. Mayeu, [1892] 2 Q. B. 511; see, also, Havighurst, Settlements and Co-Obligors, 45 Corn. L. Q. 1, 6); the second, that it must be presumed that a settlement with one of the joint tortfeasors represents a full satisfaction of the entire claim and that any further recovery would involve double compensation for the same injury. (See Cocke v. Jennor, Hob. 66 [1614]; see, also, Havighurst, loe. cit., 45 Corn. L. Q. 1, 4.) Whatever validity these reasons may have in the case of true joint tort-feasors, neither is persuasive where the tort-feasors did not combine to produce the wrong but only share a common element of liability.

As to the first asserted basis for the rule, it is obvious that the taxicab driver and the doctor, having neither acted in concert nor contributed concurrently to the same wrong, are not joint tort-feasors. (See Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410, 413-414.) Their wrongs were independent and successive, rather than joint, and, this being so, the plaintiff had not one but two separate and distinct causes of action, one against the cab driver for the negligent operation of his vehicle and the other against the doctor for his alleged malpractice in treating the fracture which the plaintiff sustained in the automobile accident. It is true that the driver could have been held liable for the aggravation of the injury caused by the doctor’s negligence but, as pointed out above, that liability is not the result of any concept of joint wrongs but is rather the product of the familiar rule that a wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligent conduct of others. Conversely, it would defy reason to hold the physician liable for injuries caused by the original wrongdoer which were not the consequences of his own carelessness, and no one suggests that a release of the doctor would completely discharge the original wrongdoer.

Nor does the second asserted reason for the release doctrine —the presumption of full satisfaction — make any sense in the context of this case. Irrebuttable presumptions have their place in the law but only where public policy demands that inquiry cease. Where the cause of action is single and the liability of one wrongdoer is identical with that of the other, there may be warrant for erecting such a barrier to suit after settlement. However, where, as here, neither of these elements is present, there is no basis or justification for preventing the plaintiff, by an artificial rule of law, from recovering the full compensation to which she would otherwise be entitled for her injuries.

Since, therefore, neither the joint tort-feasor doctrine nor the reasons underlying it are here applicable, we may not say, as a matter of law, that the release executed by the plaintiff bars the present action. In the light of our analysis, the question for resolution, and it is to be decided as an issue of fact upon a trial, is whether the plaintiff’s settlement with the taxicab driver did actually constitute satisfaction of all damages caused by his wrong or was intended as such. If it did, or was so intended, no claim remained against the doctor. But, if it did not reflect full satisfaction, and was not so regarded — and the burden of proving this essential fact rests upon the plaintiff — the release will not prevent recovery against the doctor. Our conclusion is firmly supported not only by considerations of reason and basic fairness but also by well-considered cases in other jurisdictions. (See Ash v. Mortensen, 24 Cal. 2d 654; Wheat v. Carter, 79 N. H. 150; Daily v. Somberg, 28 N. J. 372; see, also, Couillard v. Charles T. Miller Hosp., 253 Minn. 418, 427.)

Although, there is language in Milks v. McIver (264 N. Y. 267, supra) which may point to a different conclusion, nothing we there decided precludes the result reached here. The facts in the Milks case, as detailed by the court at Special Term (147 Misc. 297, 299), demonstrated that at the time the release was given to the original wrongdoer the injured child “ had already-suffered from the alleged malpractice ”, that all of the elements of damage, including aggravation of the initial injury, were fully-known to the parties and that “ the settlement was clearly made with a view to covering all these elements of damage ”. The decision that the release discharged not only the original wrongdoer but defendant doctor as well must be viewed against the background of these facts. In the course of its opinion, the court observed that ‘6 satisfaction by the original wrongdoer of all damages caused by his wrong bars action against the negligent physician who aggravated the damage. The law does not permit a double satisfaction for a single injury ”. (264 N. Y., at p. 270; italics supplied. See, also, Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410, 414, supra.) This emphasis on the element of “satisfaction * * * of all damages” plainly suggests that the court did not lay down an absolute rule of law or hold that the same result was to be reached where the facts, as here asserted, point in the opposite direction and indicate that the parties to the release could neither have taken into account damages attributable to the doctor’s negligence nor have intended the amount paid in settlement as full satisfaction. The issues presented, impossible of disposition by the court as matter of law upon motion, must be resolved by the trier of the facts upon trial.

The judgment of the Appellate Division should be reversed and the order of Special Term reinstated, with costs in this court and in the Appellate Division.

Fboessel, J. (dissenting).

We would affirm here on the authority of Milks v, McIver (264 N. Y. 267) and Rapp v. Myers (291 N. Y. 709) which laid down a definite rule that has been followed and become well settled throughout the intervening years. It is supported by the weight of authority throughout the country (112 A. L. R. 553). That rule is that a general release given to one tort-feasor releases any other tort-feasor, including a physician charged with malpractice, whose wrongdoing coalesced to cause the plaintiff injury, unless the claimant in the releasing instrument reserves rights to proceed against the other (Lucio v. Curran, 2 N Y 2d 157, 162; Gilbert v. Finch, 173 N. Y. 455, 466).

The complaint here pleads essentially an ordinary malpractice action, and nothing more. Defendant’s answer pleads a general release given to the original wrongdoer, the owner and operator of an automobile involved in an accident. The Appellate Division granted defendant’s motion for summary judgment, “ without prejudice to the commencement of another action * * * in keeping with the suggestion made on argument and on grounds other than malpractice

Plaintiff settled with the original wrongdoer for $8,000, less than eight months after she sustained her injuries, and executed a general release1 ‘ from all * * * causes of action * * * claims and demands whatsoever ’ ’ which she had against said wrongdoer. At the time, she was represented by eminent counsel. She was then still under treatment by defendant, but chose not to wait until her recovery. When she released the original wrongdoer, she in law released the defendant.

The argument that the so-called “ joint tortfeasor doctrine ” is not applicable here is not well founded. Judge Lehman, writing for a unanimous court in Milks v. McIver (supra), squarely met this argument (p. 269), and rejected it upon the ground that “their wrongs coalesced and resulted in damage which would not have been sustained but for the original injury. A wrongdoer is responsible for the proximate result of his wrong. What constitutes a proximate result is not a problem of philosophy. * The law solves these problems pragmatically. ’ ”

It is also clear that when Judge Lehman stated the “law does not permit a double satisfaction for a single injury” he concluded, as indicated by the sentence preceding, that ‘ ‘ satisfaction by the original wrongdoer of all damages caused by his wrong bars action against the negligent physician who aggravated the damage ”, and to permit the physician to be sued thereafter would amount to “ a double satisfaction ” (p. 270).

To allow plaintiff to go to trial here to prove her “ intention ” when signing the general release, which provided that it ‘ ‘ may not be changed orally ”, would be a dangerous practice and contrary to law (Lucio v. Curran, supra, p. 162), and releases in such cases as this would not be worth the paper they were written on. It would have been so simple to have inserted in the release a reservation of her rights against defendant or anyone else, as was done in McKenna v. Austin (134 F. 2d 659), referred to -jiy Judge Fuld. As the same court subsequently stated in Henry Fuel Co. v. Whitebread (236 F. 2d 742, 744), the McKenna case “holds no more than that ‘Partial satisfaction taken in compromise and release of liability of one or some of the wrongdoers does not discharge the others. ’ ” (Emphasis supplied.)

The question again arises: Shall we in this particular case change another well-settled rule without notice to the Bench, the Bar, litigants generally and others interested? It may well be that it is as wrong to charge the doer of a merely negligent act with the subsequent malpractice of a physician who has aggravated an originally simple injury, as it is to give such physician the benefit of a general release to the original wrongdoer. Under the majority holding, the difficulty, in succeeding actions, of assessing unliquidated damages as between the original wrongdoer and the physician, and the matter of contribution, present further problems. The appropriate way to meet such a situation as this is not by piecemeal decisions in particular cases overruling our prior holdings, but to permit the Legislature to act after a comprehensive study of the entire subject, and after due notice to all concerned, so that in the future they may govern themselves accordingly.

The judgment of the Appellate Division should be affirmed, with costs.

Chief Judge Desmond and Judges Burke and Foster concur with Judge Fuld; Judge Froessel dissents in an opinion in which Judges Dye and Van Voorhis concur.

Judgment reversed, etc. 
      
      , The attorney who represented her at the time avers that he advised the plaintiff to sign the release solely on the basis of the defendant’s statements both to him and to the plaintiff as to her condition and the prognosis.
     
      
      , The court did, however, suggest the availability of another action predicated on the plaintiff’s assertion that she had executed the release to the cab driver on the basis of the defendant’s misrepresentations concerning her condition and her prospects for recovery.
     
      
      . And, as to the avoidance of the rule by express reservation, Prosser has commented that “ The requirement that an express reservation of rights against other tortfeasors be inserted in the release itself seems unfortunate when releases frequently are given by plaintiffs ignorant of the law and without legal advice ” (Torts, p. 246).
     