Opinion
Decided August, 1877.
In an action brought by a surgeon against his patient for service in a surgical case, the defence of malpractice is barred by a judgment on the merits rendered for the surgeon in a suit brought against him by the patient for malpractice in the same service.
ASSUMPSIT, by a surgeon for professional service performed by him for the defendant. In a former suit brought by this defendant against the surgeon for malpractice in the same service, judgment had been rendered on the merits for the surgeon. The question whether the defence of malpractice can be set up by the defendant in this action was reserved.
Albin, for the plaintiff.
Sanborn Clark, for the defendant.
The former judgment in the suit for malpractice was on the merits, and is conclusive as to all matters then in issue between these parties. King v. Chase, 15 N.H. 9. The question of malpractice having been thus determined in favor of this plaintiff, it is not open to the defendant to try the same question again in this suit, and he is estopped from setting up in defence what was determined against him by the former judgment. Edwards v. Stewart, 15 Barb. 67; Stevens v. Miller, 13 Gray 283; Bigelow on Estoppels 45.
Judgment for the plaintiff.
STANLEY and FOSTER, JJ., did not sit.