Jones v. Burtis

88 Wis. 478 | Wis. | 1894

PiNNEY, J.

It is plain that the circuit court properly regarded all that part of the answer after the first counterclaim, to which the plaintiff replied, as constituting but one counterclaim, denominated and numbered by the pleader as his second counterclaim. It is true that, after setting forth the facts upon which the defendant relied to establish the plaintiff’s liability for malpractice, she quite unnecessarily states that she claimed to recover back what she had paid him, as a counterclaim, and then, in the next paragraph, states that in consequence of his failure to treat her properly, as a skilful physician and surgeon, “ as above set forth,” she claimed $5,000 damages for her consequent physical and mental suffering, “ as a counterclaim and cause of action,” etc. This paragraph expressly refers back to what precedes it, and the statement is, in substance, that she claims these several items of damages stated as counterclaims, or, in other words, as separate items of damage under her second counterclaim, properly numbered and denominated as such. While the pleading is inartificially and loosely drawn, we must put a fair and reasonable construction upon it as a whole, and not a strained one which will defeat it or render it insufficient.

It was sufficient for the defendant to aver that the plaintiff was a physician and surgeon; that the defendant retained and employed him as such to attend upon her for reward ; that he accepted and entered upon such employment, yet the plaintiff conducted himself in an ignorant, unskilful, and negligent manner, whereby the defendant became worse, and was greatly injured in her health, and suffered from pain, etc., to her damage, etc. 2 Chit. Pl. 607, and cases in note; Peck v. Martin, 17 Ind. 115. All these necessary averments are found, in substance, in the second counterclaim. The employment of the plaintiff as a physician and surgeon by the defendant is expressly alleged, and in substance that at the time he falsely represented to her that he possessed the necessary knowledge, etc., as a medical practitioner. It was not necessary to expressly aver that it was the plaintiff’s duty to act skilfully. His duty will be implied from his employment as a physician and surgeon. Construing the second counterclaim as embracing all the matter which the plaintiff’s counsel has treated as a third counterclaim, it is clear that the second counterclaim sets out a single, valid cause of action for malpraotice, with an enumeration of different claims of damages under it. The plaintiff’s demurrers were therefore properly overruled.

By the Court.— The order of the circuit court is affirmed.