Randolph's Admr. v. Snyder

• Decision Date: 17 June 1910
• Citation: 139 Ky. 159
• Parties: Randolph's Admr. v. Snyder.
• Court: Kentucky Court of Appeals

Page 159

139 Ky. 159

Randolph's Admr. v. Snyder.

Court of Appeals of Kentucky.

June 17, 1910.

Appeal from Whitley Circuit Court.

W. T. DAVIS, Circuit Judge.

Judgment for defendant, plaintiff appeals. — Reversed.

R. L. POPE and R. S. ROSE for appellant.

J. B. SNYDER, B. B. SNYDER and GEO. P. JOHNSON for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

William Randolph brought this suit on December 16, 1908, against Dr. S. B. Snyder, alleging in his petition that he was a miner in the service of the Cook Jellico Coal mine; and, in connection with the other miners, had made a contract on April 21, 1908, with the defendant by which in consideration of $1 a month paid by each of them through the company's office, the company agreed to treat each of them and his family as a physician, and would come when called for or send another physician instead; that when the contract was in force on September 29, 1908, his infant child, Walter Randolph, fell into the fire and got seriously burned, and he called upon the defendant to visit the child, and this he failed and refused to do, or to send another physician in his stead; that by reason of this his child suffered and finally died to his damage in the sum of $10,000, for which he prayed judgment. The defendant filed a motion that the plaintiff be required to elect which cause of action set up in his petition he would prosecute. Thereupon the plaintiff tendered an amended petition. Before the court ruled on the motion to file the amended petition, he sustained the motion to require the plaintiff to elect whether he would prosecute the action on the contract or as an action in tort. The plaintiff elected to prosecute the action for the tort. The court then allowed the amended petition to be filed. In the amended petition the plaintiff alleged that on March 24, 1909, he was duly appointed as administrator of the estate of Walter Randolph, and was acting as such. He then set out more in detail the facts above stated as to the employment of the physician and the injury and death of the child, and alleged that when the child was hurt the injuries were painful, but were with proper treatment and care on the part of the physician by no means mortal; that he immediately sent for the doctor, and he came and undertook to treat the child; that the child lingered and suffered much agony, and that the defendant treated the injuries in a negligent and unskillful manner and so caused the child to die; by reason of all of which, the plaintiff, as administrator of the estate of Walter Randolph, had been damaged in the full sum of $10,000, for which as such administrator he prayed judgment and his cost. The defendant excepted to the ruling of the court in allowing the amendment to be filed, and no further steps were taken at that term. At the next term of the court, which was held by another judge, the defendant filed a special and general demurrer to the petition as amended, and both being sustained by the court, the plaintiff declined to plead further; and his action having been dismissed, he appeals.

It is evident that the original action was brought by William Randolph individually, and not as administrator; for he was not appointed as administrator for some months after it was filed. It is also evident that the original petition sought damages against the defendant for refusing to come and treat the child, and not for negligently treating him after he came and took charge of the case. It is also evident that the amended petition seeks damages for a negligent treatment of the case by the physician after he came and took charge of it; and that the cause of action is set up in William Randolph as administrator of the child, and not individually. There could have been no purpose in setting out his appointment as administrator, alleging the damages to him as administrator, and praying judgment as administrator for the amount sued for but to bring the action as administrator. An action to recover for the pain and suffering of the child before he died may be brought by his administrator. An action to recover for his death under section 6, Ky. St., may also be brought by the administrator. The court in sustaining the special demurrer went upon the idea that the action after the amended petition was filed was still an action by William Randolph individually. This is to give no effect to the plain purpose of that amendment. The amendment was filed for the purpose of stating a cause of action in favor of William Randolph as administrator against the defendant. The special demurrer for want of capacity to sue was improperly sustained.

If the defendant made a contract with the plaintiff to treat him and his family as alleged in the petition and amended petition, and simply broke the contract by refusing to come when sent for, or to undertake the case, the right of action would be simply for the breach of the contract, and there would be no right of action in tort. But if the physician came and undertook the case and having undertaken it, was negligent in his treatment, then a cause of action in tort may be maintained for the nonperformance of the duty which the law cast upon him when he undertook to treat the case. The rule has often been applied in the case of innkeepers, carriers, attorneys, physicians, etc. They...