Hudson, Et Vir v. Weiland

THOMAS, J.: This case reaches us by appeal from final judgment for the defendants entered upon their demurrer to the second amended first count of plaintiff’s second amended declaration. Inasmuch as determination of the controversy depends upon the sufficiency of this pleading we will, at — 525 — the outset, give an, analysis of its allegations. Defendant Weiland is a physician; defendant Dyer the operator of a device for administering artificial heat by causing electricity to course through the body. Plaintiff’s left hand and arm had become injured and the defendant physician recommended that the treatment administered by the defendant diathermist be given continuously for a period of twenty minutes. She followed the advice and the electricity was applied by the latter in the presence of the former, both of them consulting with each other during the process. Injury resulting from the application was painful and permanent. It was charged that there was a joint duty on the part of these two men “to see that said diathermic treatment was properly administered and that the machine was properly operated and that the treatment was suspended and terminated at the proper time so as to prevent injury.” It was asserted that they failed in this obligation and “carelessly and negligently caused an electrical current of an amperage specified and directed by [the physician] to pass from said machine through plaintiff’s said left arm and hand for said period of twenty (20) minutes, although the said [physician] and [diathermist] knew, at the expiration of twenty minutes that the treatment was inflicting severe pain upon the arm and hand of the plaintiff . . .” It was iterated that the electrical current was “negligently applied . . . undei the negligent and careless personal supervision and direction of the said [physician] . . .,” and that the treatment lasted continuously for twenty minutes notwithstanding the remonstrances on the part of the plaintiff that it was causing her great pain. Some — 526 — time after the first experience a repetition was advised by the physician, whereupon the application of electricity of the same intensity and duration was renewed. The allegations of the declaration with reference to that ministration are substantially the same as those describing the first one. Thus, it will be seen that each of the defendants acted within a definite sphere. It was the physician’s responsibility to advise such treatment as is generally accepted by the profession as the one most likely to cure or relieve the particular injury from which the patient was suffering when she consulted him. Grubbs v. McShane, 144 Fla. 585, 198 So. 208. It was the part of the other defendant to apply the heat of a strength and duration designated by the physician. His duty was expertly to follow the instructions given. We do not understand that there is any claim that the remedy itself, that is, the application of electrical current, proposed by the physician was improper for one in her condition, or that there was failure on the part of the diathermist to follow the prescription; nor is there any charge that the machine was defective. The substance of the allegations is that the intensity of the heat, the duration of the treatment and the repetition of it constituted negligence resulting in injury. There is not only insufficient averment of facts indicating “unity of design” or “violation of . . . joint duty.” This is far from showing that there was a joint tortious act on the part of the defendant or concert of action between them. It is the position of the plaintiffs in error that the allegations of the declaration abundantly show the characteristics of joint-tort-feasorship and in support of it they cite, among other cases, our decision in — 527 — Louisville & N. R. Co. v. Allen, 67 Fla. 257, 65 So. 8, and Feinstone v. Allison Hospital Inc., 106 Fla. 302, 143 So. 251. The gist of these decisions is that if acts of negligence, although distinct in themselves, concur in producing an injury the liability is joint and several. The first impression is that the rule announced applies to the facts in the present case but from our examination of the briefs and the cited authorities and the opinions discovered in our own research we have met great difficulty in attempting to draw the line of demarcation between those cases in which the wrongdoers are, and those where they are not, joint tortfeasors. We are led by the experience to the view that the question whether two or more persons are actually joint wrongdoers is one of fact dependent upon the circumstances of the particular case. It is not the first time that this difficulty has been met by this court. In Louisville & N. R. Co. v. Allen, supra, Mr. Justice Shackleford observed that it “would be a difficult task, if not one impossible of performance” to give a definition of joint-tortfeasors that would fit all cases. We have referred to Colley on Torts, Fourth Edition, Volume 1, page 276, and have found there the statement that “no comprehensive general rule can be formulated which will harmonize all the authorities.” This eminent authority then pointed out that where there is a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability.” As we have already said the declaration in this case fails to show facts constituting either a joint duty or a common neglect. According to this authority the cases are in disagreement beyond that point, but the weight of authority supports the view — 528 — “that, where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concerted action.” (Italics supplied). This seems to be the principle adopted in our own decisions. For instance, in Feinstone v. Allison Hospital, Inc., supra, Mr. Justice Davis wrote: “The rule is well settled that if two or more wrongdoers negligently contribute to the personal injury of another by their several acts, which operate concurrently . . . they are jointly and severally liable.” (The italics there appeared in the opinion). It seems to us that emphasis, therefore, must be placed, where there is a lack of unity of design or common duty, upon the concurrence of the alleged wrongdoing. Having concluded that there is a failure of the pleader to show community of design or a common duty we have searched for allegations that wrongdoing on the part of the physician and the diathermist coincided to produce the injury. Indulging the presumption against the pleader, as we must, we are utterly unable to discern in the pleading allegations which if proven would establish that there was negligence on the part of the physician in his field and upon the diathermist in his which concurred in the eventual injury. In this view we are not influenced by the charge that the physician was present at the time of the treatment. Nelson v. Sandell, 202 Iowa 109, 209 N. W. 440, 46 A. L. R. 1447. Because of the views we have expressed it is our conclusion that the circuit judge acted correctly in entering the judgment upon the demurrer and it is therefore— Affirmed. — 529 — RBOWN, C. J., TERRELL, BUFORD and ADAMS, JJ., concur. WHITFIELD, and CHAPMAN, JJ., dissent.