Evans' Adm'r v. Cumb. Tel'p. & Tel'g Co.

121 S.W. 959, 135 Ky. 66, 1909 Ky. LEXIS 254

• Court: Court of Appeals of Kentucky
• Decided: October 26, 1909
• Status: Published

Opinion

Opinion op the court by

Judge O’Rear

Affirming.

Ernest Evans sustained an accidental gunshot wound in the leg, producing considerable hemorrhage. A messenger, who was dispatched to call a doctor, applied at a pay station of the appellee, and asked that he be furnished telephone connection with the doctor’s residence, offering* to pay the required toll. It is alleged that owing to the negligence of the operator there was a failure to make the connection with the doctor’s telephone, in consequence of which he did not get the message, and Evans was thereby deprived of his services. It is further alleged that, if the connection had been made, the doctor would or could have got to the patient in time to have stanched the flow of blood and have saved his life; but, as the doctor did not get there, the patient for the lack of medical attention bled to death.. This is a suit at law by the administrator of Ernest Evans against the telephone company to recover $25,000 damages for the alleged negligent destruction of the intestate’s life. A demurrer was sustained to the petition. An amended petition was allowed. In the amendment it was averred that the doctor mentioned whs the nearest doctor available, or who could have been secured by the decedent at that time. Evans was about four miles from the doctor’s residence. A general demurrer was sustained to the petition as amended, and, plaintiff electing to stand by the cause of action as stated, his petition was dismissed. He appeals.

We think the alleged negligence too remote in law from the fact of the decedent’s death to constitute it a proximate cause of the death. Nothing appears that, but for the alleged negligence, the death would not have resulted. The injury to the young man was inflicted before the negligent act suecl upon, and, of course, has no casual connection with it. If the sending of the message itself, and it alone, could have prevented the death, a different state of case would be presented. But the office of the message was to set in motion an entirely new and independent agency, the result of which is purely speculative. It does not necessarily follow that the doctor would or could have got to the young man before he died. Nor does it necessarily result that, if the doctor had got there, he could have saved the life of the youth. It is true, both propositions are alleged in the petition. But neither is susceptible of proof. A thing not susceptible of being proved cannot be made the basis for a recovery in a lawsuit. That would be to base the recovery upon conjecture alone, which is never allowed.

The lower court followed the opinion in Lebanon, Louisville & Lexington Telephone Company v. Lanham Lumber Company (Ky.) 115 S. W. 824, 131 Ky.-. The principal announced in that case is adhered to.

Judgment' affirmed.