Galloway v. Lawrence

139 S.E.2d 761 (1965) 263 N.C. 433

Lois GALLOWAY
v.
Benjamin J. LAWRENCE, Jr.
Laura Gene GALLOWAY, by her Next Friend, Daniel J. Parks,
v.
Benjamin J. LAWRENCE, Jr.

No. 673.

Supreme Court of North Carolina.

January 15, 1965.

Woltz & Faw, by Thomas M. Faw, Mount Airy, Womble, Carlyle, Sandridge & Rice, by I. E. Carlyle, and H. Grady Barnhill, Jr., Winston-Salem, for defendant appellant.

White, Crumpler, Powell, Pfefferkorn & Green, by James G. White, Winston-Salem, for plaintiff appellees.

HIGGINS, Justice.

The motions to strike the further defenses were equivalent to demurrers to those defenses. When allowed, the defendant had the right of immediate appeal. Our rule, 4(a), requiring certiorari, is not applicable. Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554.

The order striking the pleas in bar were based on G.S. § 1-540.1. "The compromise, settlement or release of a cause of action against a person responsible for a personal injury to another shall not operate as a bar to an action by the injured party against a physician or surgeon or other professional practitioner treating such injury for the negligent treatment thereof, unless the express terms of the compromise, settlement or release agreement given by the injured party to the person responsible for the initial injury provide otherwise." The foregoing became effective on October 1, 1961; hence was in effect at the time of the injury and subsequent proceedings related thereto.

Apparently the General Assembly intended to abrogate the rule of this Court announced in Smith v. Thompson, 210 N.C. 672, 188 S.E. 395; and alluded to in Bell v. Hankins, 249 N.C. 199, 105 S.E.2d 642, to the effect that a general release executed in favor of one responsible for the original injury protects a physician or surgeon against a claim based on negligent treatment of the injury. The facts in the Bell case do not call for the application of the general rule above stated, in that the settlement was for wrongful death. The release was in full settlement of that claim. Obviously, there was only one death; and upon the complete satisfaction of that claim a subsequent one for the same cause could not be maintained against the physician. The distinction is this: plaintiffs here seek to recover for a second, independent, subsequent injury following that which was inflicted by Jo Anne Sparger. These actions are based on a later and separate tort. The express terms of the releases here involved do not extend protection to the physician or surgeon.

The defendant insists that G.S. § 1-540.1 violates Article I, Section 1, of the North Carolina Constitution in that it discriminates against and denies equal protection of the laws to physicians and surgeons as a class and hence is invalid. However, classifications as such are not unlawful. They become unlawful when they are arbitrary and unreasonable. In this connection the classification applies with equal force to all members within the classification. Motley v. Barber Examiners, 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253; State v. Call, 121 N.C. 643, 28 S.E. 517.

A physician or surgeon takes a patient as of the time the relationship is established. The physician or surgeon is in no wise responsible for the prior injuries, nor should a release to one who caused them be a shield by which a negligent doctor may escape liability for his own negligence. The statute does not place physicians and surgeons in an arbitrary or unreasonable classification with respect to tort liabilities but rather removes them from the favored protection in which the court had placed them by the rule stated in Smith v. Thompson, supra. For example: under the rule in the Smith case, the release to Jo Anne Sparger for running over the child, breaking its leg, would protect the physician or surgeon for malpractice in the treatment of the injuries. On the other hand, if on the way to the hospital after the injury a negligent driver ran into the ambulance, breaking the child's other leg, the original wrongdoer could not be held responsible for this second injury. The second wrongdoer should not escape liability for it. Jo Anne Sparger's release should not protect one responsible for a later and independent injury unless plainly so intended by the parties. Such is the meaning of G.S. § 1-540.1; 40 N.C. Law Review, 88.

The defendant argues a distinction should be made between the release by judgment of the infant's claim and the release out of court of the mother's claim. However, the judgment was entered in the infant's case upon the basis of compromise settlement submitted to the court in a trial in which the parties waived a jury and consented for the judge to make final disposition. However, after the hearing the judge approved the settlement which the parties had entered into and submitted to him, and the judgment released Jo Anne Sparger in almost the identical words employed in the mother's release. Such a release by judgment is embraced in G.S. § 1-540.1, and does not relieve a negligent doctor.

Finally, the defendant contends the court committed error by striking the further defense in the mother's action upon the grounds she is not "an injured party," and hence the statute does not take away the right of the defendant to claim the benefits of the release to Jo Anne Sparger. The mother is an injured party for she must pay the extra expense of treatment resulting from defendant's negligence during the child's minority, and must lose its earnings for that period.

The judgments striking the further defenses are

Affirmed.