Billesbach v. Larkey

[651]

SHAW, J.

This is an appeal by the plaintiffs from a judgment given against them in the court below. A demurrer to the third amended complaint was sustained and thereupon the judgment was rendered, leave to amend further being refused. The decision depends on the sufficiency of the complaint in the particulars pointed out by the demurrer.

The complaint alleges that the defendant is a physician and was employed by plaintiffs on December 22, 1907, to cure the plaintiff, Florence, of a malady from which she was then suffering. In the course of his professional duties toward her he gave her a written prescription for the taking of a drug known as heroin, a derivative of morphine or opium. It is alleged that he “carelessly and negligently” did this, but there is no fact alleged tending to show wherein the prescription was improperly or carelessly given in the first instance. The only negligent act set forth is that after she had been taking this drug for some two months, getting the prescription refilled at a drug store, as needed, the druggist refused to refill it again without special authority from the defendant and that thereupon the defendant carelessly, unskillfully, and negligently instructed said druggist to refill said prescription for her whenever she wanted it, without bothering the defendant each time, and that he did not revoke said instruction for more than a year thereafter, and that the plaintiff, being ignorant of the deleterious effect of the drug, continued to get the prescription refilled and to take said drug for fourteen months thereafter, whereby she was made sick and weak and was seriously injured in body and mind. The complaint is diffuse, irrelevant matters are stated and other unconnected acts of negligence alleged, but the foregoing is the only matter that can be considered as actionable.

The defendant in his brief has argued at great length the proposition that the action is barred by the statute of limitations. It is said that it was upon this ground that the court below sustained the demurrer. There were, however, several other causes of demurrer assigned. If we find the ruling justifiable on any of the other grounds the judgment must be affirmed. We cannot take notice of the supposed reasons of the court below and we are not confined to those reasons in considering the rights of the parties upon the appeal. The defendant also claims that the other grounds of demurrer are well taken.