Opinion
No. 3375.
Decided January 5, 1943.
In an action by a physician for services rendered the defendant, a "special plea in the nature of recoupment" claiming damages for malpractice is good, notwithstanding it seeks unliquidated damages. After the filing of such plea the plaintiff is not entitled to take a voluntary nonsuit. In such case a plea of the statute of limitations of another state, where the alleged malpractice occurred, is not a bar to the maintenance of the plea of recoupment.
ASSUMPSIT, to recover a doctor's bill of $370 for services rendered to the defendant from September 12 to September 19, 1939. The defendant filed a plea of the general issue, together with a special plea in the nature of recoupment, in which she alleged that she employed the plaintiff as a physician to treat a certain back injury which she had sustained prior to September 8, 1939; that the plaintiff so carelessly and negligently treated said injury that his services were of no value and the defendant suffered damages in the sum of $15,000 which she seeks to recover from the plaintiff. Plaintiff is a resident of Hartford, Connecticut, and the defendant of Dover, New Hampshire.
The plaintiff subsequently filed a pleading entitled: "Plaintiff Moylan's motion for voluntary nonsuit and special plea" in which he moves, first, "for a voluntary nonsuit, provided the effect and result of the granting of same are to dismiss the counterclaim of the defendant Alice Lamothe," and second, "if the granting of the said Moylan's motion for a voluntary nonsuit does not effect or result in a forthwith dismissal of the defendant's counterclaim, the said Thomas P. Moylan does not take a voluntary nonsuit. . . ." but "moves to dismiss said counterclaim, and assigns therefor the following reasons." The reasons assigned were, first, that the special plea and counterclaim of the said Alice Lamothe is not valid and effective as such because she seeks therein to recover unliquidated damages, and second, that the special plea and counterclaim of the said Alice Lamothe is not valid and effective as such because it is barred by the statute of limitations of Connecticut (Cum. Supp. 1935, s. 1680c), where the alleged act or omission complained of occurred. The Superior Court (Lorimer, J.), reserved and transferred the question of what action the court should take in granting or denying the motion of the plaintiff filed December 31, 1941, which the plaintiff entitles "The plaintiff Moylan's motion for a voluntary nonsuit and special plea."
Hughes Burns and Walter A. Calderwood (Mr. Calderwood orally), for the plaintiff.
Robert W. Upton and John H. Sanders (Mr. Upton orally), for the defendant.
The obvious purpose which the plaintiff sought to accomplish, by filing the strange pleading above set forth, was to prevent a trial of the defendant's claim for recoupment in this state and compel her to litigate it before the courts of another jurisdiction. This would be in violation of the principles of equitable set-off as set forth in Arcadia c. Mills v. Company, 89 N.H. 188, where it is said, "One of the many circumstances which demand this extension [of the doctrine of set-off] is `the non-residence of the party against whom the set-off is asserted.'"
When plaintiff has chosen his forum and submitted himself to the jurisdiction of its courts, he cannot, by taking a voluntary nonsuit, prevent the defendant from proceeding to judgment upon a claim for affirmative relief properly pleaded. This is said to be in accordance with "the great weight of authority." 9 R.C.L., Tit. Dismissal, Discontinuance and Nonsuit, s. 18; 27 C.J.S. 199. It is clearly in accord with the principle which prevails in this jurisdiction that "the law does not compel parties to bring two actions when with equal convenience their rights can be settled in one." Johnson v. Association, 68 N.H. 437, 438. In this situation, the plaintiff does not seek to take a voluntary nonsuit, and his motion should be denied.
By his motion that the defendant's claim of recoupment be dismissed for the reason that the damages are unliquidated, the plaintiff invokes a rule which, if it ever prevailed in this jurisdiction, has been outmoded ever since the decision in Johnson v. Association, supra, where the supposed rule was specifically invoked without success.
The Connecticut statute, referred to in the plaintiff's motion, which requires that actions for malpractice must be instituted within one year from the date of the act or omission complained of, is not a bar to the maintenance of the defendant's plea of recoupment in this jurisdiction. Smith v. Turner, 91 N.H. 198; Connecticut Valley Lumber Co. v. Railroad, 78 N.H. 553. The Connecticut law seems to be in accord with these cases. Bridgeport v. Company, 105 Conn. 11, and cases cited. The Superior Court is, therefore, advised that plaintiff's motion should be denied and his special plea disallowed.
Case discharged.
All concurred.