#### IRA L. GARRETT v. DR. R. L. KENDRICK and DR. JOHN SALIBA.

(Filed 30 September, 1931.)

1. Judgments L b — Judgment rendered by court of competent jurisdiction will estop parties as to all issuable matters embraced In pleadings.

Where a court of competent jurisdiction renders judgment in a case properly before it, such judgment estops the parties and their privies as to all issuable matter contained in the pleadings, including all material and relevant matters within the scope of the pleadings which the parties in the exercise of reasonable diligence could and should have brought forward.

2. Same — Judgment in favor of surgeon for services rendered will estop patient from bringing later action for malpractice.

Where surgeons have recovered judgment against their patient for services rendered in the treatment of broken bones, lacerations, etc., a later action brought by the patient against them for alleged malpractice in such treatment is barred by the former judgment, since the allegations of malpractice should have been set up as a defense in the surgeons’ action against him, which he defended, the matter being within the scope of the prior action.

3. Same— In this case held: parties were in privity, and estoppel as to on© defendant operated as to the other.

Where a surgeon who has rendered services in the treatment of a patient recovers judgment against the patient for such services, and thereafter the patient brings action against the surgeon and his partner, who had cooperated and assisted in the treatment, to recover for alleged malpractice in such treatment, the prior action operates as a bar not only in favor of the surgeon recovering judgment therein, but also in favor of the assisting surgeon, he being regarded as a privy in the same cause.

Civil ACTION, before Grady, J., at June Term, 1931, of Pasquotahk.

Tbe facts of tbe case and tbe contentions of tbe parties are set forth in tbe judgment, which is as follows:

“This cause coming on to be beard, and upon motion of tbe defendants to dismiss tbe action, and all parties having appeared and agreed that, the court might find tbe facts and render judgment thereon, either in *389or out of term; now, upon an inspection of tlie pleadings and upon tbe admissions of tbe parties, tbe court finds tbe facts to be as follows:

1. Tbat on 20 January, 1929, tbe plaintiff, I. L. G-arrett, was injured in an automobile wreck, near Sbawboro, N. C., in Currituck County, North Carolina, said injury having been caused by the negligence of W. L. Morrisette and Mrs. ~W. L. Morrisette.

2. That thereafter during the month of May, 1929, the said I. L. Garrett instituted an action in the Court of Law and Chancery of the city of Norfolk, Va., against the said W. L. Morrisette and Mrs. W. L. Morrisette; it being alleged in the pleadings filed in said cause that by reason of the negligence of said defendants the plaintiff was knocked from bis automobile, caused to fall on the roadway, was lacerated, bruised, torn and crushed, and suffered bruises, contusions, lacerations, sprains and broken bones, injured his nerves, flesh and bones and crippled the arms and legs of tbe plaintiff, causing great pain and distress, permanent and incurable injuries; also that he was caused to suffer great mental anguish and was permanently injured and has been obliged to pay out divers sums of money, aggregating a large sum, to wit, $1,400 in and to endeavoring to be relieved and cured of said injuries, and has been forced to lose a great deal of time from attending to his business, and has suffered, and will continue to suffer, great loss from the continued diminution of his earning capacity, etc. The petition and notice of motion in said cause, and the entire record therein, is here referred to and incorporated as a part of this finding of fact.

3. Thereafter, on 19 July, 1929, the defendant executed a release in the following language: “for the sole consideration of the sum of $4,200, lawful money of the United States, to me in hand paid, this 16 July, 1929, by Mrs. Martha Morrisette (she being one of the defendants in said action) I, I. L. Garrett, being of lawful age, hereby release, acquit and forever discharge the said Mrs. Martha M. Morrisette, her heirs, executors and administrators, from any and all actions, causes of action, claims and demands accrued and to accrue on account of any known and unknown injuries, loss and damage whatsoever sustained by me on or about 20 January, 1929. It is expressly understood and agreed that the acceptance of the said amount of $4,200 is in full accord and satisfaction of a disputed claim and that the payment of the said sum of $4,200 is not an admission of liability.

.In witness whereof, I have hereunto set my hand and seal this 39 July, 1929. (Signed) I. L. Garrett.”

4. That thereupon, said release having been produced in open court, the said action was dismissed on motion of the plaintiff, on 23 July, 1929.

*3905. That as admitted in plaintiff’s reply the action in tbe Court of Law and Chancery in Norfolk, above referred to, was against Mrs. Martha Morrisette and husband, W. L. Morrisette; that it was instituted on account of injuries received in an automobile collision which occurred on 20 January, 1929; that it was instituted after the injury referred to in the complaint, and after the treatment and professional services by defendants to the plaintiff therein, also referred to, and the release, original of which is before the court, and signed by this plaintiff as a settlement, adjustment and conclusion of said litigation.

6. That shortly after said accident and injury, and before the institution of said Norfolk action, the plaintiff, I. L. Garrett, placed himself in charge of the defendants, R. L. Kendrick and John Saliba, who, as he alleges, were practicing physicians, holding themselves out to the public as possessing professional skill, efficiency and trustworthiness to treat him in a professional manner; that he was taken to the hospital in Elizabeth City for surgical treatment, and was taken over for professional treatment and attention and surgical operation by the said R. L. Kendrick and John Saliba, who are alleged in the complaint in this cause to have acted jointly and in cooperation in said treatment, and in the setting of the fractured bones of the arm and leg of the plaintiff; and it is admitted by the defendants that they were acting jointly and in cooperation for the purposes of this action.

7. The plaintiff alleges, in this action, that the defendants, without justifiable cause, negligently failed to set, adjust and treat the said fractured bones, and especially that of his leg, with that reasonable degree of care, skill and efficiency which it was their duty to exercise and which was promised and implied by holding themselves out to the public and to the plaintiff as skillful surgeons, and by reason of such neglect and failure of proper care and attention, and failure of the exercise of a fair and reasonable degree of surgical skill, and in proper setting of the bones of both the arm and leg, of the plaintiff, and especially so as to the leg, the bones of which were left lapped, not being properly adjusted and put together so they could knit, grow and heal.

8. The plaintiff further alleges that he has been damaged on account of the negligence of the defendants in the sum of $5,000; and the complaint, answers, amendments and reply filed in this cause are hereby incorporated as a part of this finding of fact.

9. At the time said medical services were performed by the defendants to the plaintiff, the defendant, John Saliba, and Dr. M. S. Bulla, of Elizabeth City, were the owners of a certain hospital in Elizabeth City, and were trading under the firm name of Elizabeth City Hospital; and on 14 August, 1929, the said John Saliba and M. S. Bulla insti-*391tilted an action in the Superior Court of Pasquotank County against the plaintiff and his wife, Beatrice Sawyer Garrett, the purpose of which action was to collect from the plaintiff, I. L. Garrett, the sum of $605.00 for bed, board and other hospital attention, other than surgical services, together with the sum of $200.00 for professional or surgical services rendered by the plaintiffs in said action, through the defendant, John Saliba, making a total of $805.00. Said cause came on for hearing at the March Term, 1930, of the Superior Court of Pasquotank County, when and where issues were submitted to the jury and said jury awarded to the plaintiffs, Bulla and Saliba, the sum of $425.00 for bed and board, and other hospital attention and the sum of $100.00 for professional or surgical services rendered through the plaintiffs therein, and judgment in favor of the said plaintiffs, Bulla and Saliba, trading as Elizabeth City Hospital, was thereupon entered by the court, for the amount aforesaid, and was paid by the defendant, I. L. Garrett, the plaintiff in the present suit. The complaint, answer, verdict and judgment in said cause are here referred to and made a part of these findings of fact.

10. The defendant, John Saliba, and defendant, R. L. Kendrick, plead said judgment, together with the judgment rendered in the court of Law and Chancery, in Norfolk, Virginia, hereinbefore referred to, as an estoppel in this action, and moves that the same be dismissed.

11. The defendant, R. L. Kendrick, also contends under the allegations of the complaint herein, and not denied in the answer, that as he was a copartner pro hac vice of the defendant John Saliba, in performing the services referred to at the Elizabeth City Hospital, he is privy to the matters and things alleged by the said John Saliba by way of defense, and in his own plea, and is also entitled to have this action dismissed as to him, for the same cause.

12. In Bell v. Machine Go., 150 N. C., page 111, it was held that, “When it has been adjudicated in a former action that the defendant in this action has performed his contract to repair the vessel of the present plaintiff, the plaintiff is estopped to claim damages arising from defective work alleged to have been done thereon.” Applying the law as enunciated in Bell v. Machine Go., supra, to the facts of the instant case, the court is of the opinion that the judgment in the case of Bulla and Saliba against I. L. Garrett, having been entered and paid, that it is necessarily an adjudication of the fact that both Doctors Saliba and Kendrick performed their services in a satisfactory and acceptable manner, and that because of this adjudication the plaintiff cannot now be heard to complain that he has been damaged by the negligence of either one of them, it is, therefore,

*392Ordered and adjudged that the plaintiff is not entitled to recover anything by his writ; that the defendants go hence without day and recover their costs to he taxed against the plaintiff and the surety on his prosecution bond. This 15 June, 1931. HeNby A. Gbady, Judge Presiding.”

From the foregoing judgment plaintiff appealed.

Ward & Grimes for plaintiff.

Dliringivaus & Hall for Kendricle.

McMullan & McMullan for Saliba.

BbogdeN, J.

The record presents the following question of law, to wit:

If a surgeon sues a patient to recover compensation for surgical services, and the patient makes an appearance and defends the suit, and judgment is recovered against him for such services, can such patient thereafter sue the surgeon for damages alleged to have been caused by the malpractice of the surgeon in treating the injuries?

^ It is to be noted at the outset that the defendant Kendrick was not a party to the suit brought by Saliba and Bulla against the plaintiff for services in treating his injuries. However, it was alleged in the complaint and found as a fact by the trial judge that Kendrick and Saliba “acted jointly and in cooperation in said treatment and in the setting of the fractured bones of the arm and leg of plaintiff,” etc. Therefore, it seems to follow that, upon plaintiff^ own theory, Kendrick was a copartner with Saliba in performing the services out of which the litigation grows.

The general rule governing estoppel in that class of cases to which the present case belongs, was declared in Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535, as follows: “That when a court of competent jurisdiction renders judgment in a cause properly before it, such judgment estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.”

Thus, when Saliba and Bulla sued the plaintiff upon a quantum meruit for services, it was necessary to allege and prove that the services were rendered and that they were reasonably worth a certain amount. As the defendant in that case defended the action upon the merit of the claim asserted, it was his duty to set up the malpractice complained of as a counterclaim by virtue of the fact that the malpractice grew out of the same contract or transaction which formed the basis of the claim of the plaintiffs.

*393Tbe trial judge was of tbe opinion tbat tbe principle announced in Bell v. Machine Co. 150 N. C., 111, 63 S. E., 680, was determinative of tbe question of estoppel. This Court concurs in tbe ruling of tbe trial judge. Tbe identical principle was tbus stated in tbe Bell case, supra: “Tbe plaintiffs contend tbat tbis is a counterclaim, wbicb it was optional witb them to plead. It seems to us tbat while tbe damage now sued for, if valid, would be a counterclaim, tbe foundation for tbem is taken away by tbe adjudication in tbe other action tbat tbe defendant bad performed its contract.”

Affirmed.