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Tidwell v. Smith

SEPTEMBER 2, 1960.

ARTIE TIDWELL, PLAINTIFF-APPELLANT,

v.

R. GLENN SMITH, EDWARD

v.

PLATT, AND THE SISTERS OF THE THIRD ORDER OF ST. FRANCIS, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded.

CROW, P.J.

The plaintiff-appellant, Artie V. Tidwell, brought suit in one count against the defendants-appellees, R. Glenn Smith, Edward V. Platt, and The Sisters of the Third Order of St. Francis, a corporation, alleging that they forcibly, on May 31, 1957, in St. Anthony's Hospital, Rockford, made an assault upon him and performed an operation without his consent. The action is one at law, and the plaintiff demanded a jury trial in apt time. So far as material, the complaint alleges the defendant Smith was engaged in the practice of medicine and surgery, the defendant Platt was engaged in the practice of anesthesiology, and the defendant The Sisters of the Third Order of St. Francis, a corporation, owned and operated St. Anthony's Hospital, Rockford; "the defendants, on May 31, 1957, in the St. Anthony Hospital, forcibly and unlawfully, made an assault upon the plaintiff, and then and there performed an operation upon him without his consent"; and "by the reason of the premises, and as a direct and proximate result thereof, the plaintiff sustained severe injuries, that an incision six inches in length was made in his abdomen, that he became sick, sore and disabled . . ." etc.

The defendants filed separate motions to dismiss the complaint and cause of action, which motions were supported by affidavits, under Section 48 of the Civil Practice Act, Ch. 110, Ill. Rev. Stats., 1959, par. 48, and set up that the claim set forth in the plaintiff's complaint had been released, that a release given by the plaintiff to William B. Fonvielle, M.D., not a defendant here, dated July 23, 1958, a copy of which alleged release was attached, released any cause of action that the plaintiff might have against the defendants here, under the theory that the release of one joint tort feasor releases all, that the defendants and Dr. Fonvielle were, under the circumstances alleged, joint tort feasors, if anything, that Dr. Fonvielle was present at the time of the alleged operation of May 31, 1957 and participated therein as an assisting surgeon, and Dr. Fonvielle had paid the plaintiff $4000 in consideration of the alleged release. An additional grounds stated in the motion of the defendant The Sisters of the Third Order of St. Francis, a corporation, will be later indicated.

The plaintiff filed separate motions and affidavits in opposition to the motions to dismiss, to the effect the claim set forth in the complaint had not been released.

The defendants' motions to dismiss were granted and a final judgment was entered October 30, 1959 for the defendants, from which the plaintiff appeals.

Prior to a consideration of those motions, a discovery deposition of the plaintiff had been taken by the defendant Edward V. Platt. The plaintiff answered certain questions propounded to him, but refused to answer questions relating to the alleged release given by the plaintiff to Dr. Fonvielle, claiming the release was "privileged" and did not relate to the merits of the matter in litigation. The plaintiff's refusal to answer was brought before the Court upon a motion by that defendant to compel answers, and the Court by an earlier order of July 9, 1959 had compelled him to answer questions concerning the alleged release. The record indicates no further orders concerning that matter, apparently the deposition was renewed and the plaintiff answered the questions, and the plaintiff made no effort to appeal from that order of July 9, 1959.

The plaintiff-appellant's theory is that the Court erred in entering an order compelling him to answer the questions propounded on the discovery deposition, and in granting the defendants' motions to dismiss. The plaintiff argues that the court erred in not finding that a material and genuine disputed question of fact was raised concerning the commission of separate alleged torts, one being a tort committed by Dr. William B. Fonvielle, and the other a tort or torts by the defendants, rather than there being a joint tort by Dr. Fonvielle and the defendants as joint tort feasors.

The copy of the alleged release attached to the defendants' motions is a general release dated July 23, 1958 by the plaintiff of Dr. Fonvielle from all manner of actions, etc. for anything from the beginning of the world to that date for an expressed consideration of $1.00 and other good and valuable considerations.

The defendant Dr. R. Glenn Smith in his affidavit asserted that he performed a surgical operation on the plaintiff on May 31, 1957 for the repair of a puncture of the colon; he had never previously treated the plaintiff; the plaintiff was a patient of Dr. Fonvielle and this surgical procedure engaged in by him on the plaintiff was done as a part of the treatment given and afforded the plaintiff by Dr. William B. Fonvielle; and Dr. Fonvielle assisted the affiant and was present at all times during the surgical procedure of the affiant referred to in the complaint.

The defendant Dr. Edward V. Platt in his affidavit asserted that the plaintiff was a patient of Dr. William B. Fonvielle on May 31, 1957 in St. Anthony Hospital; he, Dr. Edward V. Platt, administered anesthesia in connection with the surgical procedure by Dr. Smith, the principal surgeon, upon the plaintiff for the repair of a perforation of the colon; and Dr. Fonvielle was present in the operating room all the time and assisted in the surgical procedure.

The affidavit of Frederick H. Haye, one of the defendants' attorneys, was to the effect that he had examined the plaintiff on the discovery deposition and the plaintiff had therein testified that he was on May 31, 1957 a patient at St. Anthony's Hospital; he was treated by Dr. Fonvielle; on that date Dr. Fonvielle inserted an instrument into his colon, after which he suffered pain, and after which the defendant Smith was called to examine him; he was taken to an operating room; "shots" were given him; Dr. Fonvielle was in the operating room all the time the plaintiff was conscious; the plaintiff signed the release attached to the defendants' motion; Dr. Fonvielle paid the plaintiff's attorney $4000 as consideration for the release; and the only claim he ever had against Dr. Fonvielle was on account of the actions of May 31, 1957.

In addition, to the motion of the defendant The Sisters of the Third Order of St. Francis, a corporation, are attached also copies of portions of the alleged hospital records pertaining to the plaintiff, which, among other things, indicate the plaintiff was admitted 5/26/57, for medical service, was discharged 6/7/57; refer at one place to Dr. Fonvielle as the "attending doctor" and Dr. Smith as the "interne"; indicate various diagnoses at different times as "rectal hemorrhage", "peptic ulcer", "hemorrhoids", "acute appendicitis", "acute perforation of the colon"; indicate a "consultation with Dr. R.G. Smith"; show operations for "repair of perforated colon" and "appendectomy"; refer at another place to Dr. Fonvielle and Dr. Smith as "surgeon" and a Dr. Alerta as "assistant" and "instrument nurse"; describe an operation to repair a "perforation of the sigmoid colon (bowel)" and apparently an appendectomy; recite "The appendix has a thickened wall and appears to have been congested in the past"; and one of the records is evidently signed by Dr. Fonvielle and another by Dr. Smith.

A counteraffidavit of the plaintiff asserted that Dr. R. Glenn Smith was the only surgeon engaged in the surgical procedure; that Dr. Smith removed his appendix; although Dr. Fonvielle was present during that surgical procedure alleged in the complaint he did not assist or participate in any way; Dr. Fonvielle had examined him but not prescribed or given him any treatments; that the surgery by Dr. Smith was not part of any treatment given or afforded the plaintiff by Dr. Fonvielle, that Dr. Smith, not Dr. Fonvielle, attended and treated him after the operation, that Dr. Smith later told him he had removed the appendix but did not say he had repaired a puncture of the colon; he had never made any complaint as to his appendix or had any pain therefrom; and he'd employed counsel on a claim he had against Dr. Fonvielle for malpractice, a settlement was made, the consideration paid, and a release executed but not delivered. A counteraffidavit of the plaintiff's wife said that shortly after the operation Dr. Fonvielle came to the plaintiff's room, dressed in his street clothes.

The separate motion to dismiss of the defendant The Sisters of the Third Order of St. Francis, is based upon the same grounds as to the alleged release as made by the other defendants Dr. R. Glenn Smith and Dr. Edward V. Platt, and, in addition, asserts that the complaint does not state a cause of action against it, that The Sisters of the Third Order of St. Francis is a charitable corporation, and is not liable for any alleged torts of its agents, employees or medical staff members. This latter allegation by itself is insufficient as a cause for dismissal of the complaint; the trust funds, if any, of charitable corporations are immune from ...


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