Garrison v. Bonham

• Decision Date: 15 July 1952
• Docket Number: No. 34849,34849
• Parties: GARRISON v. BONHAM.
• Court: Oklahoma Supreme Court

Page 790

251 P.2d 790

207 Okla. 599

GARRISON v. BONHAM.

No. 34849.

Supreme Court of Oklahoma.

July 15, 1952.

Rehearing Denied Nov. 25, 1952.

Application for Leave to File Second Petition for Rehearing

Denied Jan. 6, 1953.

Syllabus by the Court

1. When a fact has been determined in the course of a judicial proceeding and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it might have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.

2. A general verdict returned by a jury in favor of the defendant and against the plaintiff is a finding of every material fact necessary to support it.

Howard K. Berry, Oklahoma City, for plaintiff in error.

Draper Grigsby and Duke Duvall, Oklahoma City, for defendant in error.

BINGAMAN, Justice.

This action was brought by Valeria Garrison in her lifetime, against the defendant William L. Bonham, to recover damages for pain and suffering alleged to have been caused by negligence on the part of the defendant, an eye, ear, nose and throat specialist, in performing a mastoid operation upon the plaintiff's left ear. Shortly after the bringing of the action plaintiff died and the action was revived in the name of her husband as administrator. Defendant, in his answer, among other things, denied any negligence in the operation and pleaded estoppel by a judgment, by reason of a judgment in his favor in an action thereafter brought by the administrator for the death of Valeria Garrison, due to the alleged negligence of defendant. Plaintiff, in his reply, admitted the said judgment but denied its conclusive effect in the instant case. The trial court sustained defendant's motion for judgment on the pleadings and the administrator appeals.

From the record and briefs it appears that this action was begun on October 16, 1947; that Valeria Garrison died on December 30, 1947; that her husband, S. A. Garrison, was appointed administrator of her estate and the present action was revived in his name as administrator; that on February 3, 1948, an action was filed by the administrator, who is plaintiff in the case at bar, against the same defendant on two causes of action, one for wrongful death and the other for hospital, medical and burial expenses, all alleged to be damages as a result of the negligence which is the basis of the present action. That case was tried to a jury on October 30, 1949, resulting in a general verdict for the defendant. The trial court rendered judgment accordingly and no appeal was taken from that judgment so that it became final.

In the instant case the plaintiff alleged employment of defendant, an eye, ear, nose and throat specialist, to perform an operation for mastoid upon the left ear of plaintiff; alleged that the operation was performed on October 25, 1945, in a hasty, careless, negligent, unskillful and unprofessional manner; that the defendant placed an excessive amount of antiseptic gauze packing in plaintiff's inner ear and covered and concealed the same with drugs and dressings so that it could not be seen from an external examination of the ear. It alleged that about a week following the operation the defendant left Oklahoma City, leaving plaintiff in the care of another physician, and that before leaving he did not remove the antiseptic gauze packing in plaintiff's ear, and failed to advise the physician in whose care he left her that such packing was in her ear; that the packing remained in her ear until December 8, 1945, at which time it was discovered and removed. She alleged by reason of the above the wound in her ear abscessed and caused an abnormal enlargement in her inner ear, produced an infection and a copious discharge; that it caused her to suffer severe and excruciating pain, high blood pressure, violent headaches, nausea and dizziness, and that a part of the tissues in the inner ear granulated, producing a partial paralysis of the left side of her face and the lid of her left eye. In his answer defendant denied negligence and alleged that each and every material issue and allegation in the petition as to the negligence of defendant was an issue in the other case and was finally determined in favor of defendant by the verdict and judgment for defendant in that case, and that by reason thereof the plaintiff was estopped from litigating further the question of the negligence or lack of negligence of defendant.

Defendant attached to his answer copies of the pleadings, verdict and judgment in the other case. Examination of these documents discloses that the petition of the administrator in that case alleged the negligence of the defendant and the effect that such alleged negligence produced upon his wife's ear in terms almost identical with the allegations of the petition in the instant case, with the additional allegation that the infection progressed and developed until it became malignant and caused and produced his wife's death on December 30, 1947. He further alleged that the death of his wife was the direct and proximate result of the careless, negligent and unprofessional conduct of the defendant, as therein charged and described. In a second cause of action he sued for doctor and surgical expenses, hospitalization, X-ray and laboratory expenses and funeral and burial expenses. The defendant, in his answer in that case, denied negligence and denied that the operation performed...