74 Ky. 380 | Ky. Ct. App. | 1875
delivered the opinion or the court.
The petition shows that the appellees are druggists or apothecaries, and that their prescription clerk in attempting to fill a physician’s prescription put up croton oil instead of linseed oil, and that this mistake was made through the “gross and culpable negligence” of the clerk. It further shows that the oil so put up was, in consequence of the mistake, administered as directed by the physician to appellant’s intestate, and “that it caused him great suffering and agony and did him serious and irreparable injury . . . and was the immediate cause of his death on that day; and besides great injury and suffering, deprived him of the remainder of his natural life.”
Appellant sues as the personal representative of the deceased, and claims that she is entitled to recover “ the sum of twenty-five thousand dollars due her said intestate for the wrongs, injuries, and damages done him as aforesaid,” and she prays for judgment for that sum.
'Yithout raising a question as to the sufficiency of the petition, appellees answered, and steps were taken by both parties in the preparation of the cause. Afterward appellants moved to dismiss the action upon the face of the pleadings, and their motion was sustained.
This practice is certainly irregular, if not wholly unauthorized, and the judgment of dismission can be sustained, if at all, only upon the ground that the petition presents no cause of action. It is not good as a petition under the third section of the act of 1854. Gross negligence is not necessarily the same with “willful neglect;” and we have held frequently that to maintain an action under the provisions of the section and act named it is necessary to charge “ willful neglect,” either in
The wrongs and injuries complained of do not fall within either of the exceptions named in this statute, and accordiixg to its language literally construed it is plain that the right of action growing out of these wrongs and injuries survives to the pei’sonal representative of the injured person. But appellees claim that the statute was not intended to and does not create new rights of action, and argue with plausibility and force that personal injuries resulting in death were not at the common law the subject of civil actions. In support of the
So in the case of Murphy the death of the child was instantaneous, and therefore the court correctly said, that as the intestate had during its life no cause of action, none survived under the statute to its pei’sonal representative.
In the case of Case’s adm’r the court drew the distinction between the character of actions embraced by chapter 10 and the causes of action created by the first section of the act of 1854. This section gives a right of action for the death of the intestate, whilst chapter 10 provides that actions for certain personal injuries shall survive instead of dying with the person injuring or the person injured, as was the rule prior to its adoption.
It is true it is said in that case that chapter 10 includes only causes of action growing out of personal injuries not the direct and immediate cause of the death, but the context and authorities cited and the case in hand - show that the court had in view oixly such injuries as resulted in instantaneous or immediate death.
Whilst we hold that in order to authorize a recovery in such cases there must be an appreciable interval between the infliction of the injury and the death, and that no recovery can be had when the death is practically instantaneous or immediate, we think that the petition in this case shows that between the time the poison was administered and the moment at which the death occurred there was an appreciable interval of time during which the intestate endured “great suffering and agony.”
For such suffering and agony the appellant is entitled to recover just as the intestate could have recovered if he had survived and had obtained perfect and permanent relief at the moment of his ‘death.
We do not anticipate that this ruling will (as appellees’ counsel fears) enable parties to sue under the third section of the act of 1854 for the death, and also under the provisions of chapter 10 for the damages accruing anterior to the time of dissolution. A recovery of punitive damages for the destruction of the life will certainly bar any other action' for the injury or any of its consequences, and if a 'part| elects to sue and enforce the right of action that survives to him he will not be allowed afterward to avail himself of the benefits of the punitive statute and also to recover under its provisions.