
    O’CONNELL etc v NOBLE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2273.
    Decided Jan. 27, 1930
    Crin C. Clement, Toledo, for O’Connell, etc.
    Rupert Holland, Toledo, for Noble.
   LLOYD, J.

Plaintiff, as plaintiff in error, now seeks to reverse the judgment of dismissal entered as to the defendant in error Cyrus W. Noble. Defendant in error contends that the cause of action as stated in the second amended petition shows that no professional relationship of physician and patient existed as between him and the plaintiff in error; that he was an employe and assistant of Dr. Gowing and therefore these two, Noble and Gowing, may not be joined as defendants in an action by plaintiff in error for the alleged wrongful act. The petition alleges that these two defendants “jointly and concurrently participated” in the alleged wrongful acts resulting in the injury of which plaintiff complains, the wrongful acts as pleaded being unrelated to the employment as to the administration of the an-aesthetic. • An agent is personally liable to another for his own misfeasance and positive wrong, and we are therefore of the opinion that the demurrers were erroneously sustained. This court is of the further opinion that the plaintiff in error, having elected in the court of common pleas, to proceed against Gowing, thereby waived her right to proceed against both defendants. Had she not made this election, and the court had dismissed her petition as to both defendants, this court in appropriate error proceedings would have reversed the judgment and remanded the cause. However, for the reason stated, the judgment under review will be affirmed.

Williams and Richards, JJ., concur.  