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 survive 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. 
& P. 81; Landon v. Humphrey, 151; Jenkins v. French, 58 N. 
9 Conn. 209; Tish v. Welker, H. 532; Best v. Vedder, 58 
7 Ohio N. P. 472. How. Prac. 187; McCrory v. 
32 Hyme v. Erwin, 23 8. C. Skinner, 2 Ohio Dec. 268; 
226, 55 Am. R. 15. Wolf v. Wall, 40 Ohio 111. 
33 Boor v. Lowery, 103 Ind. 
