Wood v. Downing's Adm'r

• Decision Date: 26 April 1901
• Citation: 62 S.W. 487,110 Ky. 656
• Parties: WOOD v. DOWNING'S ADM'R. [1]
• Court: Kentucky Court of Appeals

62 S.W. 487

110 Ky. 656

WOOD v. DOWNING'S ADM'R. ^[1]

Court of Appeals of Kentucky.

April 26, 1901

Appeal from circuit court, Robertson county.

"To be officially reported."

Action by Jesse A. Wood against the administrator of F. M. Downing to recover damages for malpractice. Judgment for defendant and plaintiff appeals. Reversed.

Winfield Buckler, Samuel Holmes, and Simon & Buckler, for appellant.

Thos R. Phister, for appellee.

DU RELLE, J.

Appellant brought suit in Robertson county against appellee's intestate for damages resulting from alleged malpractice as a surgeon in setting the bones of appellant's arm, alleging that it was so negligently and unskillfully done as to render the arm permanently useless. Appellee's intestate pleaded to the jurisdiction, alleging that he, at the time of and ever since the alleged injury, had been a resident and bona fide citizen of Mason county, and that the treatment of the arm and the alleged negligent acts had been done in Mason county. A demurrer to the answer was overruled, and appellant declining to plead further, it was "adjudged that plaintiff's petition be dismissed without prejudice," with a judgment against him for costs. From this order this appeal was taken, and the first question is whether an appeal lies from such an order.

For appellee it is insisted that in a large number of cases it has been held that a dismissal without prejudice is not a bar to a subsequent suit upon the same cause of action, and that therefore, it is not a final order from which an appeal lies. Whether the order of the circuit court would be a bar to any future action in any tribunal is not the test by which to determine whether it is a final order. What was determined was that the Robertson circuit court had no jurisdiction to try the case. So long as that judgment is unreversed, that question is res judicata between the parties, and will present an effective bar to future litigation of that cause of action in that court. So, if it was erroneous, it would, if unreversed, bar appellant's action unless some other court had concurrent jurisdiction. The effect of the order is exactly the same as if a special demurrer to the jurisdiction had been sustained. This question has been decided in an opinion by Judge Lindsay in Dudley v. School, 9 Bush, 576, where it was said: "The order from which this appeal is prosecuted must be regarded as final. The special demurrer to the jurisdiction of the court was sustained, and a judgment rendered against appellant for the costs of the entire proceeding. This is equivalent to dismissing the petition for the want of jurisdiction in the court, and effectually precludes appellant from taking further steps in this litigation to obtain the relief desired." The judgment of dismissal without prejudice fixed absolutely and finally the rights of the parties in this suit in relation to the subject-matter of the litigation, and put an end to the suit. It was a final appealable order. It terminated the action as to appellant. Harrison v. Waterworks, 91 Ky. 258, 15 S.W. 522; And. Law Dict. p. 738; Enc. Pl. & Prac. 2, 72.

The next question is whether the Robertson circuit court had jurisdiction. For appellee it is contended that the action comes within the meaning of section 74 of the Civil Code of Practice, which provides: "Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this state, must be brought in the county in which the defendant resides, or in which the injury is done." At common law such actions were transitory. It is suggested in the note to this section in Bullitt's Code that it was adopted because plaintiffs in such cases often awaited opportunities to sue in localities believed to be favorable to themselves. For appellant it is contended that section 74 does not apply to cases of injury to person where the injury was the result of a breach of contract. There is no doubt that the words "action for an injury to the person," as generally used, include not only such injuries as result from trespass, but also such as result from a breach of contract obligation; and in Winnegar's Adm'r v. Railway Co., 85 Ky. 547, 4 S.W. 237, in an opinion by Judge Pryor, this court seems to have held that an action "for a personal injury growing out of the violation of the obligation on the part of the appellee to carry the intestate...