Martin v. Jackson
| Decision Date | 12 May 1953 |
| Docket Number | No. 35070,35070 |
| Citation | 261 P.2d 878 |
| Parties | MARTIN v. JACKSON et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Sec. 426, 15 O.S.1951, makes the indemnitor jointly liable with the party indemnified for acts of the latter, and a foreign indemnity company, domesticated in Oklahoma, may be sued in the county where plaintiff resides, and other defendants, residing in other counties may be served with summons in the county or counties where they reside.
2. An order and judgment sustaining a general demurrer and dismissing an action is such a judgment as may be set up to bar a second action after such judgment has become final.
Roy F. Lewis, Oklahoma City, for plaintiffs in error.
Draper Grigsby and Hal McPherson, Oklahoma City, for defendants in error.
This action was filed in the District Court of Cleveland County by Bob Martin against Alvin R. Jackson and London and Lancashire Indemnity Company of New York to recover damages for alleged negligence of Dr. Jackson in treating an injured hand of the plaintiff, resulting in the loss of the use of his hand.
Plaintiff avers that he is a resident of Cleveland County and that Dr. Jackson resides in Oklahoma County and that the Indemnity Company is an insurance corporation organized under the laws of New York, but domesticated in Oklahoma. It is stated that Dr. Jackson is a physician and surgeon engaged in the practice in Oklahoma County.
Plaintiff sets up that he broke a bone in one of his hands and engaged Dr. Jackson to treat his hand; that the Doctor set the broken bone in such a negligent and unskillful manner that he lost the use of that hand; that in 1941 Dr. Jackson had entered into an indemnity contract with the Indemnity Company named whereby indemnity was obtained for the benefit of the plaintiff. A copy of the indemnity contract was not attached to the petition because it was alleged to be in the possession of the defendants.
No answer was filed, but separate motions were filed to quash the service of summons. Separate special appearances and motions challenging jurisdiction and venue were filed by each defendant alleging that Dr. Jackson was not a resident of Cleveland County, but a resident of Oklahoma County where this action was formerly filed by the plaintiff against the same defendants.
It was further alleged that in the action in Oklahoma County the Indemnity Company filed a general demurrer to plaintiff's petition which was sustained and the action dismissed as to the Indemnity Company; that no appeal was taken from that order and judgment which became final and estopped the plaintiff from maintaining the present action against the Indemnity Company. This left as the sole defendant, Dr. Jackson, a resident of Oklahoma County, who could not be sued alone in Cleveland County.
Defendants attached to their separate pleas to jurisdiction and venue a copy of the amended petition filed by plaintiff in Oklahoma County showing that the same cause of action was pleaded there as in the present case. There was also attached a copy of the order made in the Oklahoma County case sustaining the demurrer and dismissing the action as to the Indemnity Company, but overruling the demurrer as to the defendant, Alvin R. Jackson. It was alleged that certified copies of these instruments were attached to the petition as exhibits, but they are not shown to have been certified. It appears that they were filed in the District Court of Oklahoma County. The pleas of the defendants were duly verified.
The plaintiff elected to treat the defendants' special appearance and pleas to the jurisdiction of the court as answers and filed a reply thereto in which he denied the existence or rendition of the former judgment of the District Court of Oklahoma County. The replies were not verified. Thereafter, the plaintiff filed a motion to strike defendants' motions to quash in the present case, but these motions were overruled.
The defendants' pleas to the jurisdiction and venue were sustained. The plaintiff excepted and gave notice of appeal.
It is admitted that the plaintiff is a resident of Cleveland County; that Alvin R. Jackson is a resident of Oklahoma County and that the Indemnity Company is a foreign corporation which has domesticated in Oklahoma and could be sued in Cleveland County under the following circumstances: Sec. 426, 15 O.S.1951, provides that:
'One who indemnities another against an act to be done by the latter is liable jointly with the person indemnified, and separately to every person injured by such act.'
Sec. 137, 12 O.S.1951, provides, in part, as follows:
'* * * if such defendant be a foreign insurance company the action may be brought in any county where such cause of action, or any part thereof, arose, or where the plaintiff resides or where such company has an agent.'
'A right of action may be brought under the provisions of this Act in any county of the State in which the plaintiff is a resident, or in any county of the State wherein a cause of action may arise.' 36 O.S.1951, § 113.
A copy of the amended petition of the plaintiff filed in the Oklahoma County District Court in 1948 and to which defendants demurred, after alleging that the Indemnity Company was a New York corporation domesticated in Oklahoma, contains the following:
'That the defendant, Alvin R. Jackson, is a practicing physician and surgeon in the City of Oklahoma City and State of Oklahoma, and that heretofore the London and Lancashire Indemnity Company of New York made an indemnity insurance contract with the defendant, Alvin R. Jackson.'
Judgment is prayed for against each defendant. There is no allegation in regard to the contract except that quoted above. It does not allege that the contract was in effect when plaintiff's hand was treated by the defendant, Jackson. There is no allegation as to the nature and terms of the indemnity contract and nothing to indicate that it was a contract insuring Dr. Jackson's patients against negligent acts by him or that the indemnity contract contained any provisions that would or did protect the plaintiff in any way against the alleged negligent acts of Dr. Jackson. Such was the petition before the District Court of Oklahoma County when it sustained the demurrer of the Indemnity Company.
The order sustaining the demurrer in favor of the Indemnity Company and dismissing the action as to that defendant was not appealed from and became final. That left only one defendant, Dr. Jackson, an admitted resident of Oklahoma County. The plaintiff voluntarily dismissed the action in Oklahoma County and re-filed it in Cleveland County making Dr. Jackson and the Indemnity Company defendants.
In the petition filed in Cleveland County the plaintiff alleged that in 1945 the Indemnity Company entered into a written contract with Dr. Jackson 'for the benefit of this plaintiff' and that it was in force on the 15th day of October 1945 when plaintiff's injury occurred, but there were no such allegations in plaintiff's petition filed on Oklahoma...
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...order would have been res judicata, barring a future filing of this same cause of action under 12 O.S.1981, § 100. In Martin v. Jackson, 261 P.2d 878 (Okl.1953), this Court examined the question of whether an order sustaining a general demurrer and dismissing the case, was a bar to another ......
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...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 1. We......
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