Palmer v. Clarksdale Hospital, 38146

• Decision Date: 10 March 1952
• Docket Number: No. 38146,38146
• Citation: 213 Miss. 611,57 So.2d 476
• Parties: PALMER v. CLARKSDALE HOSPITAL.
• Court: Mississippi Supreme Court

Page 476

57 So.2d 476

213 Miss. 611

PALMER v. CLARKSDALE HOSPITAL.

No. 38146.

Supreme Court of Mississippi.

March 10, 1952.

Stovall Lowrey, Vincent J. Brocato, Clarksdale, for appellant.

Brewer & Brewer, Clarksdale, for appellee.

HOLMES, Justice.

Appellant sued the appellee for damages for expenses and loss of consortium arising out of injuries alleged to have been negligently inflicted upon his wife during the course of an operation while a pay-patient in the appellee hospital. The negligence claimed was that Miss Louse Francis, the superintendent of the appellee hospital, who was serving as circulating nurse in the operating room, so applied heavy canvas straps to the feet and ankles of appellant's wife as to cut off the blood circulation and failed to release or loosen the straps at necessary intervals so as to permit the resumption of the blood circulation, resulting in the development of gangrenous sores on the outside of the heels of her feet.

Prior to the trial of this cause, a suit by appellant's wife against the appellee, Clarksdale Hospital and its superintendent, Miss Louise Francis, for damages for her personal injuries arising out of the same alleged negligence, resulted in a judgment adverse to the wife.

The appellee filed its answer to the declaration in this cause and incorporated therein a plea of res judicata and estoppel, asserting the prior judgment in the wife's action in bar of this suit, and further asserting that appellant had assumed the control and conduct of his wife's prior suit and was bound by the judgment therein rendered. On motion of the appellee, this plea was separately heard and sustained by the trial court and judgment was entered dismissing appellant's suit with prejudice. This action of the trial court is assigned as error on this appeal.

The question thus presented is two-fold, consisting of the inquiry, first, whether the judgment denying recovery in the wife's action for her personal injuries constitutes a bar to the action of appellant, her husband, for expenses and loss of consortium, and, second, whether appellant assumed such control and conduct over the prior suit of his wife as that he is bound by the judgment therein rendered although not a party of record to that suit.

If the answer to the first inquiry is to be in the affirmative, as contended by the appellee, it must result from the application of the doctrine of res judicata. The essentials necessary to constitute res judicata are well settled by the decisions of this Court. They are (1) identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; and (4) identity of quality in the persons for or against whom the claim is made. Brown v. Attala Drainage District No. 2, 185 Miss. 386, 187 So. 529; Jones v. George, 126 Miss. 576, 89 So. 231.

We do not find these essentials present in the case at bar. In the prior suit, Mrs. Palmer sued for damages for her personal injuries. Here the appellant sues for expenses incurred and for loss of consortium resulting from the personal injuries sustained by his wife. In the prior suit, Mrs. Palmer was asserting a cause of action for the enforcement of a claimed right, independent of her husband, to recover damages for her personal injuries. Here the appellant is asserting a cause of action for the enforcement of a claimed right, independent of his wife, to recover damages for expenses incurred and loss of consortium resulting from the personal injuries of his wife. In the prior suit, Mrs. Palmer sued the hospital and its superintendent, Miss Louise Francis, and appellant was not a party thereto. In the suit at bar, appellant sued the hospital and neither Miss Francis nor Mrs. Palmer was a party thereto.

It will be noted, therefore, that in this and the prior suit of Mrs. Palmer, there is neither identity of the thing sued for, nor identity in the cause of action, nor identity of the parties to the action. Mrs. Palmer and Mr. Palmer each pursued their independent causes of action unaffected by the marriage relation. Mrs. Palmer's claim was personal to her and she had the right independently of her husband to assert it and sue on it under our statute abolishing the disabilities of coverture, which is Sec. 451 of the Mississippi Code of 1942, and which reads as follows: 'Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy and to make any contract in reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married.'

Likewise, Mr. Palmer's claim was personal to him and he had the right independently of his wife to assert it and sue on it. The two claims being independent and based upon a wrong affecting each in an individual capacity could not have been the subject of a joint action. Sec. 515, 27 Am.Jur., pp. 115-116. That the two claims represent separate causes of action has been recognized by this Court in the case of Brahan v. Meridian Light & Ry. Co., 121 Miss. 269, 83 So. 467, 468. In that case Mrs. Brahan sued separately and recovered damages for personal injuries resulting from alleged negligence. Mr. Brahan her husband, sued separately for expenses incurred and loss of consortium resulting to him from the injuries to his wife. The trial court limited his recovery to monies expended and excluded evidence for loss of consortium. On appeal, this Court said: 'We think it is clear from the authorities that the husband may recover for such injuries as result in loss to him inflicted upon his wife even where the statutes allow the wife to recover for injuries to herself in her own name, as our statute does. Construing our statutes on husband and wife as a whole, we are satisfied that the plaintiff was entitled to recover for consortium and that the court below erred in excluding from the jury this element of damages. We do not think the statute was intended to displace the husband as the head of the family, nor affect his rights to the domestic services which the wife renders, or would render but for her injuries.'

The authorities generally recognize the principle that an injury to a married woman caused by the wrong of a third person gives rise to two causes of action, one in favor of the wife for her personal injuries, and one in favor of the husband for expenses and loss of consortium, and that lack of privity between the husband and wife prevents the judgment in one action from being a bar to the other.

'A personal injury to a married woman caused by the tort of a third person gives rise to two causes of action; one for her personal pain and suffering, and the other for the husband's consequential loss of her society and services and for expenses incurred for medical attention and nursing. Each action is for the enforcement of an independent right and a judgment in one of the actions can not be put in evidence in a subsequent trial of the other.' 30 C.J., p. 961, Sec. 684; 41 C.J.S., Husband and Wife, Sec. 401.

'It has generally been held that, where a wife sues to recover for personal injuries to herself and the husband sues to recover for loss of her society and services, and for expenses, resulting from the same injuries, lack of privity between the husband and wife prevents the judgment in one action from being res judicata in, or a bar to, the other action.' 50 C.J.S., Judgments, Sec. 798, p. 345.

'There is no legal privity between a husband and wife in such a sense that a judgment for or against the one will conclude the other, where the action concerns their separate property, rights, or interests not derived from each other.' 50 C.J.S., Judgments, Sec. 798, pages 342-343.

Particularly pertinent to the case at bar is the following statement, supported by the citation of authorities, appearing in 133 A.L.R. 199, Note B: 'It is well established that an adjudication unfavorable to a wife in an action by her for personal injuries is not res judicata, or conclusive, as to negligence or contributory negligence, in an action by her husband for loss of services or consortium because of such injuries, there being no privity between the respective plaintiffs'.

The question here presented is also discussed with clarity and sound reasoning in the opinion of the Ohio Supreme Court in the case of Kraut v. Cleveland Ry. Co., 132 Ohio St. 125, 5 N.E.2d 324, 108 A.L.R. 521, and we quote therefrom the following with approval:

'Does a judgment denying recovery in the wife's action for personal...