Sykes v. Bonner

1 Cin. Sup. Ct. Rep. 464 | Oh. Super. Ct., Cinci. | 1871

Hagans, J.

In looking into the justice’s record, it appears that the judgment against the plaintiff for the professional services of the defendant was taken by default, and on the testimony of the defendant himself only. It was certainly not necessary, in order to entitle the plaintiff in that case to recover, that he should prove that he was not guilty of any negligence in his professional treatment. It was enough to show, simply, that he performed the service at the defendant’s request and their value, and the fact that the amount was due. There were no pleadings and no issues. There is nothing in the record to show that the question of negligence was involved.. Now, it is argued, on the authority of Gates v. Preston, 41 N. Y. 113 (which is a case exactly like the present, except that there the defendant, before the magistrate, consented in writing to a judgment); Bellinger v. Carigue, 31 Barb. 534; Davis v. Talcott, 2 Kern. 184, and White v. Merritt, 3 Seld. 352, that the judgment recovered for the services before the magistrate is a direct admission on the record by the plaintiff' in this case of all the facts, which the plaintiff, before the magistrate, would have been bound to prove on a denial of the cause of action alleged there; and that the recovery by the plaintiff' there was dependent on a full performance of his duties in the treatment of his patient, and that the plaintiff here is estopped from questioning that fact in any controversy on the same agreement for services.

We do not see how the plaintiff, in the case before the magistrate, was bound to prove that he was guilty of no negligence in his treatment of the arm before he could recover for his services therein. It was enough to prove the services and their value. We are inclined to think with Judge Daniels, who dissented in Gates v. Preston, that the question of malpractice was not necessarily in issue before the justice. It will be observed in the cases cited by the defendant, that in the first three there are dissenting opinions, and the rule laid down in the Duchess of Kingston’s case (20 Howell’s St. Tr. 538), which has been adopted by our Supreme Court in Lore v. Truman, 10 Ohio St. 45, and stated by Daniels, J., furnishes a sufficient answer to the argument. The merits of this ease, under the circumstances, could not necessarily be involved without an issue on the question of negligence; and, so far as the record and the pleadings show, the evidence adduced before the justice was for a different purpose. The effect of that judgment can not be extended or enlarged by argument or implication to matters, so far as the record shows, which were not actually heard and determined. Johnson v. Ormsby, 8 Casey, 198; Mallett v. Foxcraft, 1 Story, 474; Spooner v. Davis, 7 Peck, 147. The magistrate, doubtless, presumed, as is usual in such cases, that there was no negligence, and so rendered judgment. There was an appearance in the cases cited by the defendants, so that it might with some slight reason be claimed that the judgments were conclusive. But in the case at bar the judgment before the justice was by default, and it can not be urged for as strong a reason that it is conclusive on the question of negligence. The amount of damages far exceeded the jurisdiction of the justice, and, according to the justice’s code, sec. 108, 1 S. & C. 788, if the defendant there had pleaded these damages, she might have withheld all of them except enough to cover the plaintiff’s claim, and still the plaintiff’ be entitled to recover in this action if the judgment there had been in her favor. But was she bound to appear before the justice at all? If she was not, we do not see how that judgment can be conclusive of the issues in this case. According to section 95 of the Code, 2 S. & C. 979, “If the defendant omit to set up the counterclaim or set-off’, he can not recover costs against the plaintiff in any subsequent action therein; ” and this provision applies to suits before justices. Sec. 202,1 S. & C. 804. The only penalty for not appearing there is that she may not be entitled to recover costs in this action. Her omission to plead there is no bar to a recovery here, except it may be a bar to the recovery of costs. She might have appeared there, and pleaded her counter claim for these damages, and then elected to withdraw it, and allow a judgment to be rendered against her by default for these services, without that judgment being a bar to this action. Sec. 119, 2 S. & C. 984; Bodurtha v. Phelon, 18 Gray, 413. And this is so, where, at the time of the hearing and rendition of the judgment before the justice, her election was already made, and this action was pending, in which there was an appearance, and a trial and a verdict had occurred.

We are not impressed, when we look into our Code, with the application of the reasoning in the New York cases, and must overrule the demurrer.