Clara Rudick v. Pioneer Memorial Hospital, Denison M. Thomas, M.D., and Charles E. Donley, M.D.

By this diversity action appellant seeks to recover damages for negligent medical care and treatment received by her following an automobile accident. The question presented is whether her right to such recovery has been barred by virtue of her having released the driver of the automobile.

In the district court the ease was assigned to Judge John F. Kilkenny. In the pretrial order the facts are stated as follows:

On November 27, 1957, plaintiff signed a document entitled “Release of all Claims,” which provided in part as follows:

The issue as to the scope and effect of the release document was segregated for trial and determination of this issue was referred to Judge Gus J. Solomon. Upon consideration of the legal problem presented, Judge Solomon ordered a hearing upon the question of intention of the parties in the execution of the release. That hearing was had before Judge Kilkenny, the parties stipulating that Judge Solomon might use a transcript of the testimony taken at the hearing.

The only witnesses testifying with respect to intent were appellant and her brother. Judge Solomon concluded that appellant had “failed to sustain the burden imposed upon her to prove an…