Gallagher v. Sisters of the Poor of Saint Francis

Supreme Court of New Jersey

Gallagher v. Sisters of the Poor of Saint Francis

65 A. 833, 74 N.J.L. 268, 1907 N.J. Sup. Ct. LEXIS 139

DecidedFebruary 25, 1907

StatusPublished

This text of 65 A. 833 (Gallagher v. Sisters of the Poor of Saint Francis) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gallagher v. Sisters of the Poor of Saint Francis, 65 A. 833, 74 N.J.L. 268, 1907 N.J. Sup. Ct. LEXIS 139 (N.J. 1907).

Pincite

Opinion

The opinion of the court was delivered by

Garrison, J.

This is a demurrer to a declaration in an action in tort. The declaration contains a single ad damnum clause, which follows averments affecting four several defendants, one only of which, John J. Mooney, has demurred. The defendant the Idisters of the Poor is charged with negligence in caring for the plaintiff at a hospital maintained by it. The defendant Edward P. Fitzgerald is charged with the negligent performance of his duty as resident physician of said hospital, and the same charge is made as to Christopher B. Hill, another interne.

As to John J. Mooney, the defendant who has demurred, the allegations of the narr. are that the plaintiff fell in the street and broke her leg; that the defendant, who was a physician and surgeon, was summoned by her for the purpose of having him treat her injuries; that (to use the words of the declaration) “he came and ordered some one there to call an ambulance from St. Francis Hospital aforesaid, against the will and protest of said plaintiff, but upon the assurance of said John J. Mooney that he would follow her right up to said hospital and treat her there for said injuries, she allowed herself to be taken to said hospital in said ambulance, whereupon it became the duty of the said John J. Mooney, and by law he was required to follow said plaintiff to said hospital immediately, and there to use due and proper skill, care and conduct in the discovery and diagnosis of the wounds and injuries of said plaintiff, who had applied to him for medical and surgical treatment for the injuries aforesaid, and to use his best skill and ability toward the treatment of the injuries of said plaintiff, whom ho had contracted and undertook to supply with such medical and surgical treatment; yet, disregarding his duty in that behalf, he did not follow said plaintiff to said hospital imme- . diately, and, although she arrived there at about eleven [270]*270o’clock ill the forenoon, he did not get to said hospital until about four o’clock in the afternoon of said day; that he did not use due and proper skill, care and conduct in the diagnosis, discovery, care and treatment of the aforesaid injuries of said plaintiff, according to said contract and undertaking, nor did he supply her with any surgical or medical treatment whatever, and made no effort to alleviate her suffering.” Assuming that the facts stated support the making of the express contract alleged, the action for its breach must be in contract. The joinder of this cause of action against the demurrant, with the counts in tort against the other defendants, make the declaration bad on demurrer.

Whether, if the action against the demurrant was in tort, the declaration would be bad for misjoinder of actions for distinct causes, need not be decided.

Judgment will be entered for the demurrant.

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The opinion of the court was delivered by

Garrison, J.

This is a demurrer to a declaration in an action in tort. The declaration contains a single ad damnum clause, which follows averments affecting four several defendants, one only of which, John J. Mooney, has demurred. The defendant the Idisters of the Poor is charged with negligence in caring for the plaintiff at a hospital maintained by it. The defendant Edward P. Fitzgerald is charged with the negligent performance of his duty as resident physician of said hospital, and the same charge is made as to Christopher B. Hill, another interne.

As to John J. Mooney, the defendant who has demurred, the allegations of the narr. are that the plaintiff fell in the street and broke her leg; that the defendant, who was a physician and surgeon, was summoned by her for the purpose of having him treat her injuries; that (to use the words of the declaration) “he came and ordered some one there to call an ambulance from St. Francis Hospital aforesaid, against the will and protest of said plaintiff, but upon the assurance of said John J. Mooney that he would follow her right up to said hospital and treat her there for said injuries, she allowed herself to be taken to said hospital in said ambulance, whereupon it became the duty of the said John J. Mooney, and by law he was required to follow said plaintiff to said hospital immediately, and there to use due and proper skill, care and conduct in the discovery and diagnosis of the wounds and injuries of said plaintiff, who had applied to him for medical and surgical treatment for the injuries aforesaid, and to use his best skill and ability toward the treatment of the injuries of said plaintiff, whom ho had contracted and undertook to supply with such medical and surgical treatment; yet, disregarding his duty in that behalf, he did not follow said plaintiff to said hospital imme- . diately, and, although she arrived there at about eleven [270]*270o’clock ill the forenoon, he did not get to said hospital until about four o’clock in the afternoon of said day; that he did not use due and proper skill, care and conduct in the diagnosis, discovery, care and treatment of the aforesaid injuries of said plaintiff, according to said contract and undertaking, nor did he supply her with any surgical or medical treatment whatever, and made no effort to alleviate her suffering.” Assuming that the facts stated support the making of the express contract alleged, the action for its breach must be in contract. The joinder of this cause of action against the demurrant, with the counts in tort against the other defendants, make the declaration bad on demurrer.

Whether, if the action against the demurrant was in tort, the declaration would be bad for misjoinder of actions for distinct causes, need not be decided.

Judgment will be entered for the demurrant.

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Bluebook (online)

65 A. 833, 74 N.J.L. 268, 1907 N.J. Sup. Ct. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-sisters-of-the-poor-of-saint-francis-nj-1907.