Rose v. Sprague
| Decision Date | 28 February 1933 |
| Citation | 248 Ky. 635,59 S.W.2d 554 |
| Parties | ROSE v. SPRAGUE et al. |
| Court | Kentucky Court of Appeals |
As Modified on Denial of Rehearing May 16, 1933.
Appeal from Circuit Court, Whitley County.
Action by R. S. Rose against George P. Sprague and others. From an order dismissing the action without prejudice, plaintiff appeals.
Affirmed.
R. S Rose, of Williamsburg, for appellant.
Tye Siler, Gillis & Siler, J. B. Johnson, and W. B. Early, all of Williamsburg, Samuel M. Wilson, and Hunt & Bush, all of Lexington, and L. R. Curtis, of Louisville, for appellees.
R. S Rose sued Drs. George P. Sprague and Ernest Hosler, "Lexington Clinic," a copartnership, composed of W. O. Bullock, Charles Kavanaugh, W. J. Briggs, and others, and Drs. Granville S. Haynes, John J. Moren, ______ Grant, James Stites, L. B. Croley, and W. J. Smith, charging that each of the defendants, prior to the treatment respectively undertaken by him, held himself out, and represented to the world and to him (Rose), that he was able and qualified to treat his ailments, and that he believed and acted on such representation, and became the patient of each of them. It is set out in the petition that Drs. L. B. Croley and W. J. Smith were at the time practicing physicians, residing at Williamsburg, Whitley county, Ky.; Drs. John J. Moren and Granville S. Haynes were practicing physicians residing at Louisville, Ky; Dr. George P. Sprague was a practicing physician residing at Lexington, Ky.; Ernest Hosler was Sprague's servant and heAD nurse at High Oaks Sanatorium, Lexington, Ky.; W. O. Bullock was a surgeon, residing at Lexington, and was "called by Sprague at High Oaks Sanatorium," Lexington, Ky. to treat a wound in the throat of Rose; W. O. Bullock, Chas. Kavanaugh, and W. T. Sprague were partners, residing at Lexington, Ky; and that Drs. Grant and Stites were practicing as copartners, engaged in the practice at Louisville, Ky. The allegations of the petition show that Rose engaged these physicians in the county of their respective residences, where each treated his ailments, by virtue of separate and independent engagements, except where there was a partnership, and that their separate treatment afforded him no relief. The effect of the charges against them is that they were each guilty of malpractice. He sets out the order in which his engagements with them were mADe, and unequivocally alleges his engagement of each of them was independent of the engagement of the other, and that the diagnosis and treatment by the one were not in connection with the others. In an amended petition he avers that his first engagement was with John T. Moren, the next with Dr. Croley, and further sets forth the order in which he mADe the engagements with, and treatment by, the other physicians. He alleges that to each of them he gave a history of his ailment and the anterior treatment he hAD received consecutively at the hands of the named physicians. By a second amended petition he portrays an elaborate history of the treatment he hAD so received in the counties of the residence of the various physicians, in compliance with the successive engagements as mADe by him with them in those counties. In his endeavor to state a joint cause of action against them, in order to give jurisdiction to the Whitley circuit court, after making the above allegations, he further alleges that their separate and successive treatment was not successful, that he was not cured of his ailment, and this was caused directly by the concurrent negligence of the several physicians. Process was issued on the petition and served on Dr. Croley and Dr. Smith, in Whitley county, the county in which they resided, and in which the action was instituted. Process was issued and served in the counties in which the other named physicians resided at the time of his engagement of them, and of their diagnosis and treatment, as well as at the time the process was served on each of them. The allegations of the petition as amended show that the contracts between Rose and the physicians, except Drs. Croley and Smith, were entered into, and the service performed by each of them, in, the execution thereof out of, Whitley county. The contracts with Dr. Croley and Dr. Smith, and their diagnosis of his affliction and their treatment of the plaintiff in execution thereof were independent and separate, but occurred in Whitley county. Each of the physicians, other than Dr. Croley and Dr. Smith, without entering his appearance, entered his motion to quash the return of the sheriff on the summons issued and served on him. Dr. Croley entered a motion to require the plaintiff to elect whether he would prosecute his cause of action against him or against the other physicians. The court sustained the motion to quash the sheriff's returns as to all of the physicians who were summoned out of Whitley county, and sustained the motion of Dr. Croley to require Rose to elect whether he would prosecute the cause of action against him, or one or more of the other physicians. Rose declined to make the election. Thereupon the court elected for him to prosecute his cause of action against Dr. Croley. He declined in open court to pleAD further, and the court dismissed his action. He appeals from this order.
It is very plain that the petition as amended states against each of the physicians a distinct and separate cause of action, occurring in the several counties of the residences of the physicians. The facts thus appearing, the allegation that his injury was caused directly by the concurrent negligence of the several physicians does not relieve the case of the fact that the pleADing states an independent, separate, and distinct cause of action against each of the named physicians, originating, if at all, in the several counties of their respective residences. When the allegations of the petition as amended are considered in the light of the language of sections 74, 78, and 80 of the Civil Code of Practice, there remains no room for doubt that the Whitley circuit court was without jurisdiction as to all of those physicians who contracted with Rose and treated him out of Whitley county. The allegations of the petition show that the several physicians contracted with Rose consecutively, independently, and individually, and the treatment by the one was completed before the engagement was mADe by Rose with another one of them, and his treatment was begun. If the diagnosis or treatment by any one of them was negligently done, or was such as to come within the term "malpractice," the injury therefrom was complete before the services of the next employed physician was engaged or his services were rendered. Neither the engagements nor the services of the physicians were in any sense "concurrent." "Concurrent," as defined by Webster, means "acting in conjunction, concurring in the same act, contributing to the same event or fact, co-operating, accompanying, conjoined, associated, concomitant, joint and equal, existing together and operating on the same subject." Connecticut Fire Ins. Co. v. Union Mercantile Co., 161 Ky. 718, 171 S.W. 407. Worcester defines the word "concurrent" thus: "Concurrent, means literally running together, having the same sense of co-operating, contributing to the same event."
If the several physicians were guilty of negligence or improperly and unsuccessfully diagnosed and treated Rose's ailments the negligence of the one, according to the allegations of the petition as amended, occurred before the beginning of his engagement of the other physicians, and, if one of them was guilty of negligence in his individual treatment, and thereby Rose was injured, the result was not that of concurring causes in the sense of the term "concurrent" as it is recognized by the text-writers and the courts. It is an established principle that, where an injury is...
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