On appeal from a judgment of the Supreme Court.
For the plaintiff-appellant, David Cohn and Lawrence Diamond.
For the defendant-respondent, Morrison, Lloyd & Morrison (Francis V. D. Lloyd, of counsel).
The opinion of the court was delivered by
WELLS, J. The plaintiff, Peter Young, brought two suits in the Supreme Court against two physicians, Dr. J. Thompson Stevens and Dr. Fred J. Crescente, as principals, seeking damages for alleged malpractice. The suits were tried together at the Passaic Circuit. The case against Dr. Stevens was submitted to the jury resulting in a verdict and judgment against him for $8,000 in favor of the plaintiff, Young. An appeal was taken by Dr. Stevens from this judgment to this court and affirmed September 14th, 1944. The case against Dr. Crescente resulted in a nonsuit directed by the trial court in his favor and against the plaintiff, Young. This is an appeal by Young from the judgment entered on said nonsuit.
In his complaint plaintiff alleged substantially that on and after August 15th, 1939, and for sometime prior thereto, Dr. Stevens, defendant in the other suit, was a practicing physician with offices in New York City and Montclair, New Jersey, and the defendant, Dr. Crescente, was a practicing physician with offices in Paterson, New Jersey, and associated with the defendant, Dr. Stevens, with offices in the City of New York; that on and after August 15th, 1939, the plaintiff, Young, was suffering from a condition in and about his rectum and consulted the defendants (meaning Drs. Stevens and Crescente) for said condition and for professional treatment thereon; that thereafter the defendants prescribed a course of treatments for said condition and pursuant to the retention and employment of said defendants by the plaintiff to perform the medical services and render the service and treatment to heal and cure said condition, the said plaintiff did enter into an agreement for the payment of the charge of said defendants who did in accordance with said agreement institute a course of treatment; and for the professional services rendered by said defendants in accordance with said agreement the plaintiff did pay said defendants and did reward them in accordance with their undertaking and agreement made with plaintiff; that the last professional services rendered by the defendants to the plaintiff were in May, 1940, and at which time and prior thereto, as part of the course of treatments employed by defendants, plaintiff was forced to submit to X-ray and deep X-ray therapy, and despite their duties to render the professional services and treatments to plaintiff in a careful and skillful manner, defendants did carelessly, negligently, improperly and unskillfully perform the services so that as a proximate result thereof plaintiff received bodily injuries from which he suffered and still suffers and for which he seeks compensation from both defendants. This was the only count in the complaint.
The answer of the defendant, Dr. Crescente, denies these allegations. Counsel for plaintiff in his brief said: "The pleadings and the proofs adduced to support the pleadings, clearly frame the issues, namely; first, the one of negligence; secondly, the existence of the relationship between the parties;
and third, that both Dr. Stevens and Dr. Crescente were principals and agents and that between them engaged in a joint enterprise or joint understanding respecting the treatment of the plaintiff herein; * * *."
This statement is in conformity with the allegations of the complaint and with the opening by plaintiff's counsel to the jury wherein he said: "We are going to establish that Dr. Fred Crescente was associated with the defendant, Stevens, as an assistant and professional associate, and that he was such and held himself out to be such to the plaintiff in 1939. We are going to establish these two men held themselves out as specialists dealing in the field of radiology, which was a field dealing in the treatment of diseases and conditions by the use of this machine."
Counsel for plaintiff also said in his brief that "no one on Dr. Crescente's part ever denied the existence of the relationship as charged." Counsel is mistaken about this. True, because of the nonsuit, there was no testimony by anyone offered on Dr. Crescente's part in denial of his alleged relationship with Dr. Stevens. However, Dr. Crescente's answer denied the allegation of the complaint as to his relationship with Dr. Stevens. Likewise, Dr. Crescente's counsel denied it in his opening to the jury wherein he also stated that he would show that Dr. Crescente was a paid employee of Dr. Stevens, who was an X-ray specialist; that the people came to see Dr. Stevens and not Dr. Crescente and that Dr. Stevens diagnosed their condition and prescribed their treatment; that Dr. Crescente did what he was told by Dr. Stevens to do; that there was a nurse there, and they both followed the instructions of Dr. Stevens. So that, both by the answer and by the opening of counsel of Dr. Crescente, the plaintiff was fully apprised that Dr. Crescente denied the existence of the relationship charged in the complaint, and plaintiff, therefore, knew that the burden of proof was on him to show ...