GIBSON, C. J. Plaintiff was injured in an automobile accident and received medical and surgical treatment necessitated thereby. In 1940 she sued Robert Wubben, the negligent motorist, and recovered judgment in the sum of $15,000. Upon payment by Wubben of $5,753.22 the judgment was satisfied of record and plaintiff signed a document releasing him from further liability.
In August, 1941, plaintiff brought the present malpractice action against W. S. Mortensen and W. L. Mortensen, the doctors who treated her injuries. Among other things, it was alleged that defendants negligently treated a fracture of the femur bones by failing to secure them in position, and that, notwithstanding the fact that an X-ray picture showed the bones were out of position, defendants failed to reset them and knowingly permitted them to heal in improper alignment, as a result of which plaintiff’s legs were shortened and bowed and their use practically lost to her for life.
In their answers defendants set up the affirmative defense that the judgment, satisfaction of record and release in the first action against Wubben operated to discharge any liability on their part. The issues thus tendered by the answers were separately tried, and the court concluded that the facts pleaded constituted a complete defense to this action. Accordingly, judgment was entered in favor of each defendant, with costs, and this appeal followed.
[657]Plaintiff urges that under general principles of tort law the release of Wubben in consideration of part payment of the judgment against him does not bar this malpractice action against defendants who allegedly were negligent in treating the injuries inflicted by Wubben. Defendants, on the other hand, contend that since a person should not be twice compensated for the same injury and since plaintiff could have recovered compensation for damages resulting from the alleged malpractice in the action against Wubben, the release of Wubben and the satisfaction of the judgment in that action are a complete defense to this action.
It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefor. (Dewhirst v. Leopold, 194 Cal. 424, 433 [229 P. 30] ; Rest., Torts, § 457; McCormick, Damages, p. 272; note, 39 A.L.R. 1268.) But the fact that plaintiff could have obtained full compensation for all damages in the action against Wubben, the original wrongdoer, does not establish that she has been so compensated. The independent and successive acts of Wubben and defendant doctors, differing in time and place of commission as well as in nature, produced two separate injuries and gave rise to two distinct causes of action. Plaintiff was at liberty to sue Wubben for damages resulting from the original injury alone, and to sue defendants for damages resulting from the additional injury or aggravation, in separate actions; and the order in which such actions might be brought would be immaterial. (See Parkell v. Fitzporter, 301 Mo. 217 [256 S.W. 239, 243, 29 A.L.R. 1305]; Rest., Torts, § 879, Illus. 3.) The plea of former recovery, therefore, involves a consideration of what the injured party did in fact recover in her action against the original wrongdoer rather than what she could have recovered therein. (Wheat v. Carter, 79 N.H. 150 [106 A. 602]; Parkell v. Fitzporter, 301 Mo. 217, supra; Staehlin v. Hochdoerfer, (Mo.), 235 S.W. 1060; cf. Smith v. Coleman, 46 Cal.App.2d 507 [116 P.2d 133]; Viita v. Dolan (Viita v. [658]Fleming), 132 Minn. 128 [155 N.W. 1077, 1080, Ann. Cas. 1917E 678, L.R.A. 1916D 644].)
Defendants insist, however, .that without regard to the evidence introduced in the action against Wubben, and thus without regard to the nature and extent of the recovery therein, the release" of Wubben from all liability operated to discharge them from liability for any negligent aggravation of the original injury. In their view, the amount of damages sustained by plaintiff, the sum received as consideration for the release, and the relation between the two, the intention of the parties, and the fact that Wubben and defendant doctors are independent rather than joint wrongdoers, are immaterial. In other words, defendants seek to substitute a rule of law for the factual defense of double recovery. The rule contended for has been adopted in a number of jurisdictions. (Feinstone v. Allison Hospital, 106 Fla. 302 [143 So. 251]; Paris v. Crittenden, 142 Kan. 296 [46 P.2d 633]; Smith v. Mann, 184 Minn. 485 [239 N.W. 223]; Adams v. DeYoe, 11 N.J.Misc. 319 [166 A. 485]; Milks v. McIver, 264 N.Y. 267 [190 N.E. 487]; Tanner v. Espey, 128 Ohio 82 [190 N.E. 229]; Thompson v. Fox, 326 Pa. 209 [192 A. 107, 112 A.L.R. 550]; Martin v. Cunningham, 93 Wash. 517 [161 P. 355]; Mier v. Yoho, 114 W.Va. 248 [171 S.E. 535]; of. Wells v. Gould, 131 Me. 192 [160 A. 30]; 112 A.L.R. 553.) But the conclusion that the release of the original wrongdoer releases the attending doctor from liability for malpractice has been reached by treating the independent wrongdoers as joint tort feasors or applying, by analogy, the common-law rule of unity of discharge affecting joint tort feasors. The common-law rule of unity of discharge is based on the concept of the unity of a cause of action against joint tort feasors, and its application to the facts of the present case would give the independent tort feasors herein an advantage wholly inconsistent with the nature of their liability. Moreover, the rule contended for by defendants would stifle compromises, favored in the law, inasmuch as the injured person could not effect a settlement with the original wrongdoer without surrendering his separate cause of action against one who, by his independent tortious act, aggravated the injury.
A release of a cause of action against a wrongdoer is not a release of a separate or distinct cause of action against [659]another independent wrongdoer. It follows that the mere release of Wubben from liability did not result in the discharge of the cause of action against defendants. We are of the opinion that a release of the original wrongdoer should release an "attending doctor from liability for aggravation of the injury “if there has been full compensation for both injuries, but not otherwise.” (Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413, 435; Wheat v. Carter, 79 N.H. 150 [106 A. 602]; cf. Smith v. Coleman, 46 Cal.App.2d 507, 513 [116 P.2d 133]; Wallner v. Barry, 207 Cal. 465, 473 [279 P. 148].)
Defendants next contend that plaintiff has in fact received full compensation for both injuries. They argue, in this respect, that Dr. W. L. Mortensen, appearing as a witness for plaintiff in her action against Wubben, gave testimony concerning injuries which plaintiff now asserts resulted from their negligence and for which she seeks damages in this suit, and that the judgment against Wubben necessarily included an award for damages suffered by reason of malpractice. Even if we assume, for purposes of argument, that in her action against Wubben plaintiff sought to recover all the elements of damages to which she may be entitled, the record does not support the contention that plaintiff has received full compensation for both injuries. The only approximation of fair compensation for all the damages sustained by plaintiff which the record in this case offers is the sum of $15,000, the amount of the judgment against Wubben. Until plaintiff has received money in excess of that figure, there is nothing to show that she has been compensated twice for the same injury. It is undisputed that plaintiff received only $5,753.22, or slightly more than one-third of the amount of the judgment, and, in our opinion, she is entitled to recover from defendants for actual damages suffered by reason of their tortious acts, if any, for which she has received no compensation.
It has been held in some cases involving unliquidated tort demands that the payment of any sum in consideration of the release of one of several joint or independent concurrent tort feasors will be presumed to have been made and accepted as full compensation or satisfaction for the alleged injury. (Hawber v. Raley, 92 Cal.App. 701 [268 P. 943]; Flynn v. Manson, 19 Cal.App. 400 [126 P. 181]; Dwy v. Con[660]necticut Co., 89 Conn. 74 [92 A. 883, L.R.A. 1915E 800]; Masterson v. Berlin St. R. Co., 83 N.H. 190 [139 A. 753] ; see Dougherty v. California Kettleman Oil Royalties, Inc., 13 Cal. 2d 174, 181 [88 P.2d 690] ; cf. Tompkins v. Clay St. R.R., 66 Cal. 163 [4 P. 1165].) There is also authority to the contrary. (McKenna v. Austin, 134 F.2d 659.) But whatever may be the rule with regard to a settlement with joint or independent tort 'feasors whose acts concur to produce a single injury, it does not follow that such presumption should be indulged where, as here, the injured person’s claim embraces separate injuries caused by independent successive tort feasors and is liquidated by a judgment against the original tort feasor. The presumption of full compensation or satisfaction found in the cited "cases must be based on the fact that there is but a single indivisible injury and that the claim arising therefrom is unliquidated. Under the circumstances of this case, it would be more logical to presume that part payment of the Wubben judgment represented merely the best obtainable compromise for the liability of the judgment debtor. (Cf. McKenna v. Austin, supra, p. 664.)
We do not wish to be understood as holding that in every case of this kind the question of double recovery is to be determined solely by reference to the amount awarded in the first action. The jury’s award in the action against Wubben is not binding on defendants or res judicata as to them. They have the right to show what damage, if any, was actually suffered by reason of malpractice and to have the jury’s award in this action restricted to the difference between such damage and any sum already received by plaintiff as compensation therefor. Defendants, however, successfully objected to an attempt by plaintiff to introduce evidence of the nature and extent of the separate injuries caused by the successive wrongdoers. There was therefore no consideration of the actual facts, and the record is devoid of evidence from which double recovery could be inferred.
The judgments are reversed.
Shenk, J., Curtis, J., Carter, J., and Schauer, J., concurred.