Forman v. Wolfson
| Decision Date | 04 May 1951 |
| Citation | 327 Mass. 341,98 N.E.2d 615 |
| Parties | FORMAN v. WOLFSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. P. Sullivan, Boston, J. F. Mahan, Boston, for plaintiff.
J. F. Dunn, Boston, for defendant.
Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ.
This is an action of contract by writ dated December 10, 1945, for breach of warranty in an alleged oral contract whereby the defendant, a physician and surgeon, agreed for consideration to correct a malformation of the plaintiff's nose, without leaving any permanent injury or disfigurement. The defendant in his answer, among other defences, sets up res judicata. The action was tried to a jury and at the conclusion of the evidence, upon motion, the judge directed a verdict for the defendant. The action comes here upon the plaintiff's exceptions.
The evidence most favorable to the plaintiff as disclosed by the bill of exceptions is as follows: On or about March 12, 1942, the plaintiff consulted the defendant, who examined her upon several occasions. Thereupon he agreed for consideration to operate, and promised that he would remove a small amount of soft tissue from the bottom of her nose which would correct the malformation and leave no permanent injury or disfigurement. The defendant performed the operation which not only failed to correct the condition but resulted in further malformation and injury. The plaintiff by writ dated March 15, 1944, had previously brought an action in tort, alleging negligence of the defendant in the same operation and in after treatment. That action was tried to a jury who on June 7, 1945, returned a verdict for the defendant, upon which judgment for the defendant was entered. Forman v. Wolfson, 321 Mass. 749, 78 N.E.2d 496.
The declaration in the earlier action alleged that she employed the defendant to perform an operation and to attend and care for her; that the defendant performed the operation; and that by reason of the carelessness, negligence and unskilfulness of the defendant, the operation was not successful and she suffered injury and damage. The declaration in the present action alleges an agreement to operate with a warranty that he would successfully correct the condition, 'but due to the disregard by the defendant of his obligations under the aforesaid contract, and his failure to exercise the professional skill, which he had warranted that he would exercise,' the...
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...of several proceedings in the courts"; and in applying the policy against claim splitting in successive coercive suits); Forman v. Wolfson, 327 Mass. 341, 98 N.E.2d 615, cert. denied, 342 U.S. 888, 72 S.Ct. 179, 96 L.Ed. 666 (1951) (action alleging breach of warranty arising out of a surgic......
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Davignon v. Clemmey
...distress, on the ground that their July 1998 Agreement for Judgment in the housing-court case is res judicata. See Forman v. Wolfson, 327 Mass. 341, 98 N.E.2d 615, 616 (1951) (noting three elements of res judicata defense: "identity of cause of action and issues, the same parties, and judgm......
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