
    Case 73 — Action to Recover Damages fob Malpractice —
    April 26.
    Wood v. Downing’s Admr.
    APPEAL PROM ROBERTSON CIRCUIT COURT.
    Judgment por Dependant and Plaintipp Appeals,
    Reversed.
    Appellate Jurisdiction — Final Order — Venue op Action — Malpractice.
    Held: 1. An order dismissing an action without prejudice is a final order from which ian appeal lies.
    2. Civil Code, section 74, providing that every action for an injury to the person of plaintiff, except the actions provided for by the preceding sections, must be brought in the county in which the defendant resides, or in which the injury is done, does not apply to an action against, a surgeon for malpractice, the injury being the result of a breach of - contract, but such an action being transitory, may be brought in any county in which the defendant resides or is summoned as is provided by section 78, Civil Code.
    WINFIELD BUCKLER, Attorney por -appellant.
    This suit was brought by Jesse Wood against F. M. Downing in the Robertson Circuit Court seeking to recover of him the .sum of $5,000 for malpractice as a physician, and the defendant was served with process in said county.
    Defendant appeared and plead that he was a resident of Mason county and that the Robertson Circuit Court had no juris.di-ction of the action.
    Plaintiff demurred to the plea which was overruled by the Court, and plaintiff declining to plead further the lower Court dismissed his petition without prejudice, to which the plaintiff excepted and appeals.
    The plaintiff claims:
    1. That the judgment of the Court dismissing his petition without prejudice is a final one from which an appeal lies.
    2. That this is an action upon an implied contract which is transitory, and may he brought in the county where the defendant resides nr is summoned.
    AUTHORITIES CITED.
    Anderson’s Law Dictionary, p. 738; Ency. of Pleading and Practice, yol. 2, p. 72; Harrison v. Lebanon Water Works, 91 Ky., 258; Menifee v. Alexander, 21 Ky. Rep., 980; Ency. of Pleading and Practice, vol. 6, 998, 1000; Civil Code, sec. 74.
    THOS. R. PH1STER, attobney fob appellee.
    1. We submit that the judgment appealed from is not a final order, as it only dismisses plaintiff’s petition without prejudice.
    2. Not waiving the foregoing claim, we contend that the Robertson Circuit Code had no jurisdiction of the action under the Kentucky Civil Code of Practice.
    AUTHORITIES.
    APPEAL-FINAL JUDGMENT.
    Magill v. Mercantile Trust Co'., 81 Ky., 32; Yankey y. Sweeney, 85 Ky., 61; Cravens v. Hardstem, 16 Ky. Law Rep., 271; Mattingly v. L. & N. R. R. Co., 92 Ky., 464.
    VENUE OF ACTIONS.
    Civil Code, 72, 73, 74; Ky. Statutes, sees. 10, 2515, 2516; Watts v. Thomas, 2 -Bibb, 458; Moore v. Smith, 2 B. M., 340; Menefee v. Alexander, 21 Ky. Law Rep., Nov. 21, 1899; Fillet & Semple v. Bollenkemp, 13 B. M., 227; 3 Blaekstone’s Commentaries, 91; Wennegar’s Admr. v. Central Pass. R. W. Co., 85 Ky., 547; Hans-ford’s Admr. v. Payne, 11 Buch., 382; 2 Waits’ Actions and Defenses, 103; Kuhn v. Brownfield, 11th, Lawyers’ Rep., An., 701; Memphis & Cin. Packet Co. v. Nagel, 16 Ky. Law Rep., 748; Wise v. C. & C. R. W. Co., 91 Ky., 56.
   Opinion of the court by

JUDGE DuRELLE

Reversing.

Appellant brought suit in Robertson counity 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 tlie 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 eases 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 iany future action in any tribunal is not the test by which to determine whether it i.s 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 umreversed, 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 judgmemt rendered against appellant for the casts 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; 12 R., 255 (15 S. W., 522); And. Law Dict., p. 738; Enc. Pl. & Prac., 2, 72.

The next question is whether the Iiobe-rtson 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 subh 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 mo 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 while on its cars to his place of destination when paid or offered to he paid the regular fare,” was included under section 10, Kentucky Statutes, which provides: “No-right of action for personal injury, or injury to personal or real estate, shall cease or die with the person injuring or the person injured, except actions for assault and battery, slander, criminal conversation, and so much of the* action for malicious prosecution as is intended to recover for the personal injury; but for any injury other than those excepted, an action may be brought or revived by the personal representative or against the personal representative, heir or devisee, in the same manner as causes of action founded on contract.” But the decision in the Winnega.r case may have been based upon the fact that “at common law torts to t!he person survived when the action-could be framed in form ex contractu.” But in Menifee v. Alexander (Ky.) 53 S. W., 653, (21 Ky. L. R., 980) the exact language used in .section 74 was construed not to -apply -to an action -against a physician for negligence or want -of skill in the treatment -of patients. In that case the question for- decision was the proper -construction of sections 2515 and 2516, • Kentucky Statutes, section 2515 being the five-year* statute of limitations, which provides expressly for “an action upon a contract not in writing, signed b3r the party, express or implied;” and section 2516 being the one-year statute, wihich applies to “an action for an injur3r to* the person of the plaintiff.” It was held that all those causes of motion. for which assumpsit lay at common law were* covered by section 2515, providing the bar of five years,, and the court, through Judge Hobson, discussing section. 2516, said: “The question presented is whether the words, ‘an action for an injury to the’person of the plaintiff’ in this section cover an action against a physician for negligence or want of skill in the treatment of a. patient.. . . . ‘In actions for official or professional negligence the cause of action is founded in the breach of duty which actually injured the plaintiff, and not on the consequential damages.’ 2 Greenl. Ev., section 437. The phrase, ‘an action for an injury to the person of the plaintiff,’ in the statute quoted, refers to those cases where the personal injury is the gist of the action; such as actions for assault •land battery, and the like. If a druggist should sell a man poison for a harmless medicine, the suit for damages, therefor would not be an action for injury to the person, although great suffering or loss of health had resulted from it. The limitation to an action against a physician for improperly treating his patient is the same as that in a like action against an attorney, a teacher, or a mechanic for negligence in the discharge of a duty assumed by them. In Ang. Lim., section 71, it is said: ‘The action of assumpsit lies to recover damages for consequential wrongs or torts, which, though they are ex delicto, are quasi ex contractu; and they anise from malfeasance, or doing what the defendant ought not to do; nonfeasance, or not doing what he ought to do; and misfeasance, or doing what he ought to do improperly.’ All these causes of action for which assumpsit lay at common law are covered by section 2515 of the Kentucky Statutes, which allows actions on implied contracts or for injuries to the rights of the plaintiff not arising on contract, and not otherwise provided for, to be comimeniced within five years next after the cause of action accrued. Kinnison v. Carpenter, 9 Bush, 599.” The reasoning of this opinion would seem to be equally applicable to the ease at bar, and we ai'e -of opinion th'at the venue of actions of this ■character, where the gist of the action is not the consequential injury, but the breach of the contract, is not governed by section 71 of the Oodte, but by section 78 as to the venue of transitory actions, which provides that 'hn action which is not required by the foregoing sections of this .article to be brought in some other county may be brought in any county in which the defendant or in which one of several defendants who may be properly joined as such in the action, resides or is •summoned.” For the reasons given, the judgment is reversed, and cause remanded, with directions to set aside the order overruling the demurrer to the answer and dismissing the petition, and for further proceedings consistent herewith.

Whole court sitting.  