LIABILITIES 81 



of the firm will be jointly liable for the 

 acts of the others within the terms of the 

 partnership. This includes acts of omission or 

 of commission.^ ^ But, where the act complained 

 of occurred before the partnership was formed, 

 the new physician in the case will not be held lia- 

 ble, and the first in attendance must bear the entire 

 liability. ^^ The rule as to agency will hold the 

 superior liable for the act of a physician sent by 

 another to attend a case for him, or under his 

 direction, where the service of the second physi- 

 cian is rendered purely as the outcome of rela- 

 tionship between the two, and not amounting to 

 a partnership. 



53. Survival of Action. Under the old civil 

 law practice, actions in tort, which include suits 

 for malpractice, do not sundve the death of either 

 party. There has been a tendency, however, to 

 base malpractice suits upon the idea of contract, 

 and in actions on contract it has frequently been 

 admitted that the administrator or executor of 

 the deceased's estate may take the place of the 

 deceased in the case. However, it has frequently 

 been held that an action for malpractice does not 

 survive the death of the physician.^"^ While recog- 

 nizing the contractual relation existing between 

 the physician or surgeon and his patient, we must 

 also remember that the contract is an assumed con- 



31 Hancke v. Hooper, 7 Car. 468, 53 Am. St. R. 519, 3 N. E. 



6 P. 81; Landon v. Humphrey, 151; Jenkins v. French, 58 N. 

 9 Conn. 209; Tish v. Walker, H. 532; Best v. Vedder, 58 



7 Ohio N. P. 472. How. Prac. 187; McCrory v. 

 32Hyrne v. Erwin, 23 S. C. Skinner, 2 Ohio Dec. 268; 



226, 55 Am. R. 15. Wolf v. Wall, 40 Ohio 111. 



33 Boor V. Lowery, 103 Ind. 



