Eckels v. Traverse

• Decision Date: 06 June 1961
• Docket Number: No. 39034,39034
• Citation: 362 P.2d 683
• Parties: Leslie ECKELS, Plaintiff in Error, v. Dr. Clifford TRAVERSE and St. Paul Mercury Indemnity Company, a Minnesota Corporation, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 683

362 P.2d 683

1961 OK 139

Leslie ECKELS, Plaintiff in Error, v. Dr. Clifford TRAVERSE and St. Paul Mercury Indemnity Company, a Minnesota Corporation, Defendants in Error.

No. 39034.

Supreme Court of Oklahoma.

June 6, 1961.

Syllabus by the Court

1. Syllabus of a decision of the Supreme Court of Oklahoma states the law of Oklahoma, but the pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the court.

2. Section 426, Title 15 O.S.1951, does not authorize the joining as co-defendants of a physician and his insurer in a malpractice suit.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Plaintiff in error sued in Tulsa County the defendant physician, a resident of Woods County, Oklahoma, and his insurer, for malpractice. The trial court dismissed the action against the insurer for improper joinder. Thereafter the court dismissed the action against the physician for want of venue. Plaintiff appeals. Affirmed.

Ted R. Fisher, Paul W. Brightmire, Tulsa, for plaintiff in error.

Foliart, Hunt & Shepherd, Oklahoma City, for defendants in error.

JOHNSON, Justice.

This is an appeal from a judgment of the District Court of Tulsa County, Oklahoma. The parties appear here as in the trial court and will be referred to under their trial court designations.

Hazel Eckels, wife of plaintiff, was operated on by the defendant Dr. Clifford Traverse, a resident of Woods County, Oklahoma, in Woods County. This suit was brought against him to recover for damages sustained by the husband by reason of the alleged malpractice of defendant Traverse. It was sought to establish venue in Tulsa District Court by joining the insurance company, St. Paul Mercury Indemnity Company, as co-defendant.

To the amended petition, which had attached a copy of the insurance policy, the insurance company filed its motion to strike and demurrer. In ruling upon such motion and demurrer, the court entered the following order:

'* * * After being duly advised in the premises the Court finds, orders and adjudges as follows:

'1. That the 4th paragraph of the Motion of St. Paul Mercury Indemnity Company to strike from plaintiff's Amended Petition be and is hereby sustained, and exceptions are allowed. The other grounds of said Motion are now moot and require no action by this Court.

'2. That the Demurrer of St. Paul Mercury Indemnity Company to the plaintiff's Amended Petition is hereby sustained, and exceptions are allowed.

'That plaintiff, in open Court, immediately after the foregoing rulings and orders of the Court, elected to stand upon his Amended Petition and the Court thereupon orders and decrees that plaintiff's Amended Petition should be and the same is hereby dismissed as to the defendant St. Paul Mercury Indemnity Company, and exceptions are allowed.

'Thereupon, the defendant Dr. Clifford Traverse, through his counsel, orally renewed his objection to the venue of the Court, and upon reconsideration of the objection of said defendant to the venue, in light of the dismissal of the action as to defendant St. Paul Mercury Indemnity Company, it is therefore ordered that the action be and the same is hereby dismissed for want of venue as to the defendant Dr. Clifford Traverse, and exceptions are allowed.

'The plaintiff thereupon in Open Court gives notice of his intention to appeal to the Supreme Court of the State of Oklahoma from the adverse rulings, orders and judgment of the Court herein in favor of the defendants and against the plaintiff, and requests that such notice be entered on the trial docket of this Court as provided by law.

'The plaintiff further gives notice in open Court to the Clerk of this Court of his election to proceed upon the original record for such appeal, as provided by law.

'It Is Further Ordered that the judgment of this Court be stayed, pending the disposition of said appeal, without the necessity of filing a supersedeas bond.'

From said ruling plaintiff has perfected this appeal.

There is but one issue involved: May the insurance carrier be joined in this action? If not, the action fails against the carrier and ipso facto the court is without venue to hear the cause against the defendant Traverse.

Among the provisions of the policy were the following:

'2. Personal Liability--To pay all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law or contract for damages, including damages for bodily injuries, care and loss of services, sickness or disease, mental anguish, including death at any time resulting therefrom, sustained by any person or persons, and for damages because of injury to or destruction of property.'

Clearly then, the contract was one of indemnity. It further provided that:

'5. Action Against Company. No action shall lie against the company unless, as a condition precedent thereto, the Insured shall have fully complied with all of the terms of this Policy, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant, and the Company. Any person or his legal representative who has secured such judgment or written agreement shall thereafter be entitled to recover under the terms of this policy in the same manner and to the same extent as the Insured. Nothing contained in this Policy shall give any person or organization any right to join the Company as a co-defendant in any action against the Insured to determine the Insured's liability. Bankruptcy or insolvency of the Insured or of the Insured's estate shall not relieve the Company of any of its obligations hereunder.'

These provisions of the policy are sufficient, in our opinion, to determine the issue.

There is no statutory requirement compelling a physician to carry indemnity insurance. It is wholly a matter of choice with the physician.

The plaintiff urges that the case of Martin v. Jackson, Okl., 261 P.2d 878, construing Sec. 426, Title 15 O.S.1951, is decisive of the issue herein. With this contention we cannot agree for the following reasons:

1. We construe the first paragraph of the syllabus in the Martin case to mean that where a domesticated foreign corporation and an individual are sued for a tort that the action may be brought in the county of plaintiff's residence and summons may be issued to other counties for the defendants. Such paragraph does not hold that such defendants are necessarily properly joined.

2. In Ohio, as in Oklahoma, the syllabus is the law of the case, and this rule has been most strictly construed by the Supreme Court of that state. We are convinced that that court has adopted the correct interpretation of the rule when dictum inadvertently is incorporated in a syllabus. That court said in Williamson Heater Co. v. Radich, 128 Ohio St. 124, 190 N.E. 403, 404:

'The defendants in error, as did the courts below, rely upon the first paragraph of the syllabus in the case of Matzinger v. Harvard Lumber Co., 115 Ohio St. 555, 155 N.E. 131, as decisive of the matter. It is worded as follows: 'The provisions of section 8312, General Code, requiring notice to be served upon the owner of a structure being erected under contract, apply to the contractor and subcontractor but not to material men.' Although the words 'and subcontractor' are included in the rule there enunciated, an...