Pier v. Cauley
Pier v. Cauley
Opinion of the Court
From the judgment of the district court for Platte county sustaining a demurrer to her petition and dismissing her action, plaintiff appeals. Plaintiff alleges that at all of the dates mentioned in her petition defendant Cauley was a practicing physician and surgeon at Humphrey, Nebraska, and the defendant Allenberger was a practicing physician and surgeon at Columbus, Nebraska; that there was an arrangement, agreement and understanding between the two whereby Cauley, when called in surgical cases, should call Allenberger to aid and co-operate with him in the treatment and care of his patient, and he should charge his patient for the services of each; that on August 3, 1911, the plaintiff, a young woman 18 years of age, met with an accident whereby her leg was broken below the knee; that the fracture caused an incision of the skin to such an extent that the hones protruded from the wound, and dirt and foreign substances were admitted therein. She being young and inexperienced, and so disabled that she was unable to act for herself, her parents on her behalf called the defendant Cauley in his professional capacity, as the petition alleged, “to treat and care for said wound and in
To this petition defendants filed a joint demurrer on the following grounds: “The several causes of action therein stated are improperly joined. There is a misjoinder of parties defendant. There is a defect of parties defendant.” The demurrer was sustained and the action dismissed.
It is contended by defendants that the petition states two causes of action, one for alleged wrongful acts and omissions of Dr. Cauley, for which he alone is liable, and another for alleged wrongful acts and omissions of Dr. Allenberger, for which he is liable, either exclusively, or jointly with Dr. C'auley.
Our Code provides that its provisions and all proceedings under it shall be. liberally construed, with a view to promote its object and assist the parties in obtaining justice. The demurrer in effect admits the truth of all of the allegations of the petition, and it will be noted that the petition alleges that each defendant at the time of the injury was a physician and surgeon; that they “had an arrangement, agreement and understanding with each other whereby in cases where the defendant Anthony Cauley was called in his professional capacity to attend and treat a patient for a wound or physical injury of any kind, and particularly where he was called in a case which needed or required a surgical operation or treatment, he was to call the said defendant Christian A. Allenberger in consultation and to aid and co-operate with him in said treatment and operation and was to charge his patient for the serv
Counsel for defendants have cited a number of authorities in support of their contention that the petition states two causes of action, one for the wrongful acts and omissions of Dr. Cauley while acting alone, and another for the acts and omissions of the two doctors while acting jointly; but in the cases cited there was no concerted action between the different defendants, but each of the wrongdoers acted independently of all others, although the effect of what they did merged and produced the injury. If defendants acted separately, each independently of the other, there being no concert of action between the two, there would be no joint liability; but if their acts are concurrent and inseparable, and, taken together produced the injury alleged, they are jointly liable therefor.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.