Rodgers v. Higgins
| Decision Date | 14 April 1993 |
| Docket Number | No. 79,454,79,454 |
| Citation | 871 P.2d 398,1993 OK 45 |
| Court | Oklahoma Supreme Court |
| Parties | James G. RODGERS and Betty J. Rodgers, Appellants, v. James R. HIGGINS, M.D.; Cardiology of Tulsa, Inc.; John R. Hood, M.D.; Gastroenterology Specialists, Inc., an Oklahoma Corporation, Appellees, and Saint Francis Hospital, an Oklahoma Corporation, Defendant. |
On Appeal from the District Court, Tulsa County; Daniel J. Boudreau, Judge.
Within the framework of a single medical malpractice action husband pressed a common-law claim for bodily injury and wife for her loss of consortium. This appeal is from judgment on a verdict for the defendants on both claims. Defendants seek the appeal's dismissal for untimeliness. APPEAL DISMISSED.
W.C. Sellers, Jr., W.C. "Bill" Sellers, Inc., Sapulpa, for appellants.
Joseph M. Best, Joseph A. Sharp, John H.T. Sullivan, Daniel S. Sullivan, Kevin L. Ward, Karen M. Grundy, Best, Sharp, Holden, Sheridan & Stritzke, Tulsa, for appellees.
The single issue for our decision is whether the general unreserved jury verdict in this common-law action became the "filed judgment" in the § 990A [12 O.S.1991] sense by operation of 12 O.S.1991 § 696.1 1 [§ 696.1]. We answer in the affirmative and dismiss the appeal as untimely.
THE GENERAL UNRESERVED JURY VERDICT, RATHER THAN THE TRIAL
COURT'S PRESUBMISSION RULING ON THE APPLICABLE
THEORY OF RECOVERY, DISPOSED OF THE
The doctors seek this appeal's dismissal for untimeliness. They urge us to apply the teachings of Jaco Production Company v. Luca, 10 which holds that a judicially unreserved general verdict--entered by the clerk in a common-law action--becomes transmuted into a filed judgment eo instante by force of 12 O.S.1991 § 696.1. 11
The Rodgers argue the verdict did not resolve all the issues because the district court had "sustained defendants' demurrer to the evidence " on some of the "claims." They would have us treat each of their multiple alternative theories of recovery as a distinct cause of action (or as a separable claim ). 12 According to the Rodgers, no judgment was entered until the trial court memorialized both the jury's verdict and its presubmission ruling in the single journal entry of March 26, 1992. 13
Oklahoma jurisprudence utilizes the transactional approach for its definition of a "cause of action." 14 Although different theories At pretrial Rodgers identified what he called his "claims" or "causes of action" as: (1) fraud and misrepresentation, (2) breach of warranty and (3) execution of a blood transfusion without his informed consent. 16 In law all of his asserted grounds constitute nothing more than three distinct and alternative theories of recovery. 17 Defendants "demurred" to the evidence at the close of the case; they contended the proof was insufficient to support any claim against them, especially one founded on breach of warranty or on fraud and misrepresentation. The trial court ruled the facts warranted the claim's submission on a want-of-due-care theory of the plaintiffs' allegations that (a) the doctors did not completely and accurately inform Rodgers about the risks from the blood transfusion, (b) as a result of their omission he withdrew his objection to the procedure's execution and (c) later suffered bodily injury. In short, the critical nisi prius mid-trial ruling withheld from submission two of the three theories tendered by the plaintiffs: (1) breach of warranty and (2) fraud and misrepresentation. 18
of liability may be pressed in support of each claim, only a single cause of action can ordinarily be predicated upon one occurrence or transaction. 15 The single offending event that Rodgers (husband) complains of is the pathogenic blood transfusion. His evidence shows that when he was hospitalized for a colonoscopy, Dr. Hood recommended a pre-procedure blood transfusion. According to Rodgers, when he objected and questioned its necessity, Dr. Hood told him the physicians would try to do without it. Later, a nurse brought the blood and told him Dr. Higgins had ordered it. Rodgers told Dr. Higgins that (1) he was concerned about the blood and (2) his brother in Arkansas, who had the same blood type, could be summoned at once to donate the needed quantity. Rodgers testified that Dr. Higgins (1) assured him it was not necessary for his brother to donate blood, (2) repeated the "just-don't-worry-about-it" phrase three or four times and (3) told him "everything will be fine." Although Rodgers' signature appears on a consent form for authorizing the transfusion, he does not remember signing it. A few months after the procedure he began to exhibit symptoms of a liver disease later diagnosed as hepatitis.
A plaintiff who states a claim and proves its facts is entitled to any relief affordable by law; 19 the pleader need not correctly identify any applicable theory of recovery. 20 The trial court must charge the jury on all the legal issues the evidence tenders. 21 In this case, the trial court ruled the evidence called for instructions on the theory of negligence and on the wife's loss of consortium. Plaintiffs'-pressed submission of the claim on other theories was rejected as unwarranted by their proof.
Nisi prius refusal to instruct the jury on alternative theories of recovery is distinguishable from an order that sustains a demurrer to the evidence in support of a cause of action or of a claim. If the trial court's presubmission ruling had (1) withheld either Rodgers' or his wife's claim in its entirety or (2) severed from jury trial claims against some of the four defendants, the general verdict might not have been dispositive of all the issues in this common-law action. 22 An adjudication of all multiple claims and the settlement of the rights and liabilities of all the parties to those claims is a sine qua non of an appealable event unless there be "an [earlier] express [judicial] determination that there is no just reason for delay [of an appeal]" and "an express direction for the [immediate] filing of judgment." 23 The verdict in this case did not leave any issue or claim undecided.
When the trial of this case began (1) Rodgers had but one claim ex delicto for damages against four defendants, all answerable jointly and severally and (2) his wife had a single claim against the same four parties for her loss of consortium. Both of the Rodgers' claims went to the jury against all of the four defendants in the case. 24 Its verdict favors all the defendants. In short, the only demands the Rodgers ever had--one claim by each of them--were finally disposed of by the single jury verdict.
The district court's mid-trial ruling does not represent an order appealable before judgment; nor does it leave post-verdict issues to be resolved. Had this case been timely appealed, any error in withholding from the jury's consideration the rejected plaintiffs' theories of fraud and breach of warranty, if properly preserved, clearly would have been reviewable on appeal from the judgment entered by force of § 696.1 upon the general unreserved jury verdict. 25
Recent case law 28 unequivocally teaches that under the provisions of 12 O.S.1991 § 990A 29 [§ 990A], read together with the specific terms of § 696.1, appeal time in common-law 30 actions decided by a general verdict is triggered by (1) the judge's failure to "reserve" (withhold) judgment and (2) the clerk's entry of judgment into the record proper 31--an entry which is necessarily preceded by the verdict's filing. These acts transmute the verdict by force of § 696.1 into the legal equivalent of a filed judgment in the § 990A sense. 32 The prevailing party is hence entitled to entry of judgment in his favor the day the jury verdict is returned and accepted without reservation. 33
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