Whittaker v. Collins
| Decision Date | 01 December 1885 |
| Citation | 34 Minn. 299 |
| Parties | THOMAS A. WHITTAKER <I>vs.</I> EDWARD E. COLLINS. |
| Court | Minnesota Supreme Court |
White & Reynolds, for appellant.
Allen & Parkhurst and W. W. Billson, for respondent.
This is an action for damages caused by the negligence and unskillfulness of defendant as a physician and surgeon. It appears from the complaint, in substance, that defendant and one Graff were copartners as practicing physicians and surgeons; that, plaintiff's leg having been broken, he employed the firm to set it, and to care for and treat him professionally; that part of the time Graff attended him, and did his work skilfully; that the remainder of the time his partner, the defendant, attended the plaintiff, and performed his duties negligently and unskilfully, causing the injuries complained of. Both were acting in the line of their partnership business, and under and in pursuance of the employment of the firm professionally by the plaintiff.
The court below having sustained a demurrer to the complaint on the ground of a defect of parties defendant, the sole question raised by this appeal is whether Graff, defendant's partner, should have been made a party defendant. The admitted rule is that in actions on contract all persons jointly liable must be sued, but that in actions for tort, disconnected from any contract, the tort-feasors need not be joined. The question is, what rule applies in what are sometimes called actions for torts founded on contracts, or actions ex quasi contractu?
The principle running through all the cases seems to be that where the action is maintainable for the tort simply, without reference to any contract between the parties, the action is one of tort purely, although the existence of a contract may have been the occasion or furnished the opportunity for committing the tort. But where the action is not maintainable without pleading and proving the contract, — where the gist of the action is the breach of the contract, either by malfeasance or nonfeasance, — it is, in substance, whatever may be the form of the pleading, an action on the contract, and hence all persons jointly liable must be sued. 1 Chit. Pl. 87; Pomeroy on Remedies, § 282; Dicey, Parties, 437; 1 Lindley on Partnership, 482; 2 Collyer, Partnership, § 732; Powell v. Layton, 2 Bos. & Pul. 365; Max v. Roberts, Id. 454; Cabell v. Vaughan, 1 Wms. Saund. 288h, 291e, 291f; Weall v. King, 12 East, 452; Bretherton v. Wood, 3 Brod. & B. 54; Walcott v. Canfield, 3 Conn. 194.
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