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Daily v. Somberg

Decided: December 1, 1958.

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



For reversal -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The plaintiff appealed to the Appellate Division from the summary judgment which the Law Division had entered in favor of the defendants. See Daily v. Somberg, 49 N.J. Super. 469 (1958). We certified on our own motion.

On January 14, 1954 the plaintiff was seriously injured in an automobile accident in Ohio. He was in an Ohio hospital for almost a month and on February 10, 1954 was transferred to St. Michael's Hospital in Newark, New Jersey. While at St. Michael's he was under the care of the defendants, Dr. Somberg and Dr. Flanagan. On May 22, 1954 the plaintiff was operated on by the defendants. On June 7, 1954 he was discharged from St. Michael's but continued under the care of Dr. Flanagan for some time. Thereafter he came under the care of physicians at the University Hospital, New York University-Bellevue Medical Center who operated on him on December 17, 1954. It is asserted that the plaintiff is now a paraplegic.

The plaintiff instituted an action in the United States District Court for the Southern District of New York against Dealer's Transport Company and its employee Virgil E. Elliot. In that action the plaintiff charged that the Ohio accident was the result of the negligence of the Transport Company and its employee and sought recovery for all injuries flowing therefrom. In April 1956 that action resulted in a mistrial. While it was awaiting retrial the plaintiff on May 2, 1956 filed his complaint in the New Jersey Superior Court in which he sought recovery from the defendants Dr. Somberg and Dr. Flanagan. In his

first count he alleged (1) that the defendants were negligent in their "diagnosis" and "treatment," in failing to perform "adequate, complete, and proper surgery" and in failing to use reasonable care in their "performance of surgery and in treatment," and (2) that because of their negligence the plaintiff's condition resulting from injuries sustained in the accident of January 14, 1954 "was not alleviated, improved or cured, but became worse." In his second count he alleged that the defendants had performed their medical and surgical services "pursuant to a contract made for plaintiff's benefit agreeing thereby to perform all services which they represented themselves to be fully competent to render"; that the defendants "failed to perform their obligations" under the contract; and that by reason of the breach of contract the plaintiff's injuries "were not improved but became worse." Cf. Von Blumenthal v. Cassola, 166 Misc. 744, 3 N.Y.S. 2 d 246 (Sup. Ct. 1938), affirmed 254 App. Div. 857, 6 N.Y.S. 2 d 342 (1938).

On June 12, 1956 the plaintiff settled his case against Dealer's Transport Company and its employee. He received the sum of $139,000 and executed a formal release to "Dealer's Transport Company, a corporation and Dealers Transit, Inc., as its successor, and Virgil E. Elliot (hereinafter collectively referred to as the 'Releasees')." The release provided that the plaintiff (and his wife) did thereby release and discharge the "releasees" as well as their "agents, servants, employees, officers, insurers, heirs, executors, administrators, successors and assigns" from all claims which they have against the "releasees," including claims arising out of the accident of January 14, 1954 or connected with the action in the United States District Court for the Southern District of New York. The release set forth on its face that the releasees denied that they were liable for any damages sustained by the plaintiff and that the sum paid by them was "paid in settlement and compromise of all claims without in any way admitting liability." It also set forth that the plaintiff released his claims, "including all those for known and unknown and anticipated

and unanticipated injuries and damages," and that the plaintiff had relied on the advice of his counsel "respecting the legal liability of the parties released for the claims hereby released." The release was executed in New Jersey.

On June 21, 1957 the defendants Drs. Somberg and Flanagan filed their answer and demand for trial by jury in the New Jersey Superior Court. They denied the allegations of negligence and breach of contract and asserted, as a separate defense, that the release of Dealer's Transport Company constituted a complete bar to the plaintiff's New Jersey action against them. On November 1, 1957 a pretrial order was entered and it was amended on December 13, 1957. As amended, the order set forth that the plaintiff charged the defendants with breach of contract and negligence in failing "to act promptly to perform laminectomy and spine fusion operations"; in delaying "unreasonably in performing necessary tests and myelograms"; in delaying unreasonably and neglecting "to make prompt examinations, diagnosis, treatment, care and surgery"; in failing "to promptly perform operations or take measures for decompression for the alleviation of the plaintiff's condition"; and in permitting and advising "the plaintiff after the alleged performance of laminectomy to travel about on crutches without taking adequate safeguards and protection for the health and condition of the plaintiff." The pretrial order also set forth, among other matters, the plaintiff's charge that because of the negligence of the defendants the plaintiff's condition "was not alleviated, improved or cured, but became worse."

On January 31, 1958 the defendants moved for summary judgment of dismissal on the single ground "that the plaintiff, having received satisfaction in full, for all of the damages alleged against these defendants and having executed an unqualified Release under seal for any causes of action that he might have had against the defendants or either of them has been extinguished." In support of the motion, the defendants' counsel contended that the law of Ohio rather than New Jersey governed the matter, and that

under the law of Ohio the release to Dealer's Transport Company barred the plaintiff's claim against Drs. Somberg and Flanagan. See Tanner v. Espey, 128 Ohio St. 82, 190 N.E. 229 (1934); Knight v. Strong, 101 Ohio App. 347, 140 N.E. 2 d 9 (1955). In opposition to the motion, the plaintiff's counsel contended that the law of New Jersey rather than Ohio controlled and that under the law of New Jersey the release of Dealer's Transport Company did not release Drs. Somberg and Flanagan unless it was so intended or the consideration received by the plaintiff constituted full compensation for all of his injuries or was accepted as such. See Breen v. Peck, 48 N.J. Super. 160 (App. Div. 1957), affirmed 28 N.J. 351 (1958); Adolph Gottscho, Inc., v. American Marking Corp., 18 N.J. 467, 470 (1955), certiorari denied 350 U.S. 834, 76 S. Ct. 69, 100 L. Ed. 744 (1955). The plaintiff's position was that there was no intent to release Drs. Somberg and Flanagan and that the consideration received by him did not constitute full compensation for all of his injuries and was not accepted as such; and it was urged that these ...


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