Opinion
Rehearing Denied Sept. 5, 1973.
Weller, Friedrich, Hickisch & Hazlitt, Arthur H. Downey, Denver, for defendant-appellee Charles Freed, M.D.
Richard A. Anderson, Lakewood, for plaintiffs-appellants.
T. Raber Taylor, Denver, for defendant-appellee Sisters of Charity of Leavenworth, a corp., d/b/a Saint Joseph Hospital.
SILVERSTEIN, Chief Judge.
Robert and Hilda Title seek recovery of damages for injuries allegedly resulting from negligence on the part of defendants, Dr. Charles Freed and St. Joseph Hospital. The defendants denied the negligence and alleged that the claim was barred by a general release executed by plaintiffs. Thereafter both defendants moved for summary judgment. The motions were granted, and plaintiffs appeal from the ensuing judgment of dismissal. We affirm.
Plaintiff Robert Title was injured in an automobile accident in September 1968. His injuries necessitated surgery on his skull. Subsequently, in May 1969, Dr. Freed performed an operation at St. Joseph Hospital for the purpose of putting a plastic plate over a hole which remained in the skull after the previous surgery. Five days after the surgery the patient lost the use of his left arm. This circumstance gave rise to the present action.
In July 1969, the Titles sued the party responsible for the automobile accident and settled that case, receiving $103,000. At the time of the settlement, in December 1969, the Titles executed a General Release which contained the following pertinent language:
'(The Titles) release and forever discharge (the tortfeasor) . . . and all other persons, firms and corporations from any and all claims . . . of whatsoever kind or nature, arising from or by reason of any and all known and unknown, forseen and unforseen, bodily and personal injuries . . . and the consequences thereof, resulting or to result from (the automobile accident).'
At the time of the execution of this release the consequences here complained of were known to plaintiffs. All of the above facts are undisputed.
Under these facts Ashley v. Roche, 163 Colo. 498, 431 P.2d 783, and Sams v. Curfman, 111 Colo. 124, 137 P.2d 1017, are controlling. In the latter case a party injured in an accident sued the tortfeasor, settled the case, executed a general release, and then sued the physician for alleged negligence in his treatment of the resultant injuries, all as in the present case. The Supreme Court affirmed the trial court's dismissal of the action on the ground that the release given in the first action released the physician because, 'the original injuries are held to be the proximate cause of the added damages resulting from the negligence and unskillfulness of the attending physician.'
The plaintiffs did not except the defendants from the release, as they could have done, Cox v. Pearl Investment Co., 168 Colo. 67, 450 P.2d 60, and cannot here impeach their unequivocal release. Cox, supra.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.