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Daily v. Somberg

Decided: April 2, 1958.

ALPH DAILY, PLAINTIFF,
v.
HAROLD M. SOMBERG AND JOHN J. FLANAGAN, DEFENDANTS



On motion for summary judgment.

Drewen, J.c.c. (temporarily assigned).

Drewen

This is a motion by defendants for summary judgment in a medical malpractice case. The motion rests on the claimed effect of a general release heretofore given by the present plaintiff in a suit brought by him to recover damages against the original tort-feasor for the injuries whose treatment is in question in the present suit. Defendants rely in support of their motion on the pleadings, the admissions made in response to defendants' request therefor and the pretrial order as amended.

The accident from which the primary injuries resulted occurred in Ohio. Suit to recover for the injuries was brought in the United States District Court for the Southern District of New York. Daily v. Dealer's Transport Co. , 16 F.R.D. 566. In a trial thereof the jury disagreed, some

time whereafter the claim was settled and general release given in consideration of the payment of $139,000. The instrument of release was made and delivered in New Jersey.

A statement of further details is in order. The accident occurred January 14, 1954. After confinement for about one month to a hospital in Ohio for the treatment of severe injuries, plaintiff was transferred for further treatment to St. Michael's Hospital in Newark, New Jersey, where he came under the care of the defendant physicians. On May 22, 1954 defendants performed an operation on plaintiff for a condition resulting from the primary injury. Plaintiff was discharged from the hospital in Newark on June 7, 1954, continuing under defendant Flanagan's care for some time thereafter. It was not until all treatment had been terminated that the prior suit for damages was brought, in the federal court as aforesaid and against Dealer's Transport Company. The attorneys representing plaintiff in the present action represented him in that action.

On May 21, 1956, while the federal suit was still pending, the instant complaint was filed, predicated upon the aforementioned surgical procedure of May 22, 1954. Shortly after the filing of the instant complaint, and on June 12, 1956, plaintiff and his wife executed the general release now pleaded, and relied on by defendants in the motion before us.

A copy of the release is attached to defendant's request for admissions, and by answer to the fourth request it is admitted to be a true copy of the release executed by the plaintiff and delivered to Dealer's Transport Company. In form, the release is general, unconditional and contains no reservation of rights. After setting forth acknowledgment of the receipt of $139,000, it reads, in part, as follows:

"* * * in consideration thereof the undersigned * * * release and forever discharge the said Releasees * * * of and from all and all manner of action and actions, cause and causes of action * * * claims and demands whatsoever, * * * which against the said Releasees, * * * the undersigned ever had, now have, or claim to have or which they * * * hereafter can, shall or may have * * * including without limiting the generality of the

foregoing, all claims and demands arising or growing out of an accident * * * which occurred on or about the 14th day of January, 1954 on U.S. Route 30 in the vicinity of Van Wert, Ohio and all claims and demands of the undersigned arising out of or in any way connected with any of the matters set forth in the pleadings filed in the U.S. District Court for the Southern District of New York in the cause entitled 'Alph Daily, plaintiff, against Dealer's Transport Company, a corporation, defendant', * * *."

"* * * the undersigned hereby release all claims including all those for known and unknown and anticipated and unanticipated injuries and damages. The undersigned * * * have relied upon the advice and representations of counsel selected by the undersigned respecting the legal liability of the parties released for the claims hereby released. The undersigned * * * understand fully the above and foregoing release and have been fully advised as to the legal effect thereof by counsel of their own selection."

The foregoing instrument, be it carefully noted, releases plaintiff's "claims and demands arising or growing out of an accident * * * in * * * Ohio and all claims and demands * * * in any way connected with any of the matters set forth in the pleadings * * * in the U.S. District Court" case. The legal effect of such release on the present cause of action can be determined only after the "injuries and damages" proximately resulting from the injury in Ohio have been ascertained. The fundamental problem appears to be one of causation. Whether an act is the legal cause of another's injury is determined by the law of the place of the wrong. 11 Am. Jur., Conflict of Laws, sec. 182. The rights and liabilities arising out of the accident in Ohio are to be determined by the law of Ohio, the state in which the accident occurred. Clement v. Atlantic Casualty Ins. Co. , 13 N.J. 439, 442 (1953); Harber v. Graham , 105 N.J.L. 213, 214-215 (E. & A. 1928). The law that creates the right determines what items of loss are to be included in the damages. Since the right to damages is created by the law of Ohio, it is ...


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