44 Ga. App. 184 | Ga. Ct. App. | 1931
This case is before this court for the third time. A brief synopsis of the former proceedings is essential to a clear understanding of the issue now involved. On May 29, 1926, Mrs. Smith filed a suit for damages against the Georgia Baptist Hospital, alleged to be a corporation. She alleged and proved to the satisfaction of the jury that while she was a pay patient at the Georgia Baptist Hospital, and while undergoing an operation there and while lying unconscious and helpless, she was seriously burned and permanently injured (the sight of one eye being practically destroyed and the other very greatly impaired) through the gross negligence of one of the defendant’s anesthetists, who, while administering ether to her, allowed it to come in contact with her face and eyes, seriously burning her face, causing her intense and excruciating pain and suffering for many months, practically destroying her eyesight, and leaving her face disfigured for life. -Upon the overruling of the defendant’s motion for a new trial, it brought the ease to this court, and this court held that “the verdict in favor of the plaintiff (for $8,000) was authorized, and none of the special grounds of the motion for a new trial required a reversal of the judgment below.” A rehearing was denied by this court and an application for certiorari was denied by the Supreme Court. See Georgia Baptist Hospital v. Smith, 37 Ga. App. 92 (139 S. E. 101). Thereafter Mrs. Smith had summons of garnishment issued, directed to the Atlanta and Lowry National Bank and the Citizens and Southern National Bank, directing them
Thereafter Mrs. Smith filed an amended traverse and an amendment to said amended traverse to the answer of the Citizens and Southern Bank, garnishee. Said Executive Committee demurred to said traverse as amended and moved to strike the same, and the demurrers .and motion were overruled by the trial judge. The claimant excepted pendente lite to this judgment and now assigns error thereon. Thereafter said claim and said amended traverse came on for trial. It was agreed by all parties that the said
The substance and effect of the amended traverse is that the Executive Committee was the real defendant in the original suit and every stage thereof, that it was the owner and operator of the hospital using the name Georgia Baptist Hospital as a trade name, that said Executive Committee was the real tort-feasor who injured Mrs. Smith, and that therefore said Executive Committee, being the tort-feasor and having defended the suit, is bound by the judgment in favor of the plaintiff. Certain allegations and proofs as shown by the record previously before us, and also embodied in the case sub judice, though strongly persuasive, were, when taken alone, insufficient to show that the Executive Committee had defended the suit. However, these facts, when augmented by vital additional allegations of the amended traverse and proof thereof to the satisfaction of the jury, amply sustained the verdict of the jury and the judgment of the trial court in favor of the traverse and against the claimant. The writer stated in a specially concurring' opinion when the ease was last before us that “it is inconceivable that the corporation which owned and operated the hospital took no part in defending the damage suit.” The record in the present case shows that the Executive Committee, the corporation which' owned and operated the hospital, did actually defend the damage suit, as shown by additional allegations and proof not revealed in the record heretofore before us.
The injury complained of was in October, 1925, and the suit was filed in May, 1926. The defense- to the original suit was on the
The evidence further shows that at the time of the injury to the plaintiff the hospital was managed by Arch C. Cree as executive secretary and treasurer of the Executive Committee of the Baptist Convention of the State of Georgia and by Dr. Elder, an employee of the Executive Committee, who was known as resident superintendent; and that service of the petition in this case was made on Arch C. Cree while he was an officer of the Executive Committee corporation and was not an officer of the Georgia Baptist Hospital Corporation.
Now we come to the vital additional facts disclosed by this record, which facts were not before us when the case was last in this court, and which facts, together with' the evidence heretofore referred to, show conclusively that the Executive Committee was the real tortfeasor, was the party at interest, was the party which defended the suit, and is bound by the judgment. Plaintiff introduced in evi
Mr. Marion Smith testified in part as follows: if I am the attorney for the defendant in the case of Mrs. L. M. Smith vs. Georgia Baptist Hospital, No. 68260, in Fulton superior court. I got the petition from somebody connected with the New Amsterdam Casualty Company. . . My employment to represent the defendant m that case was hy the New Amsterdam Casualty Company [italics ours]. . . No part of the expense connected with the suit was paid by the Georgia Baptist Hospital nor by anybody else except the New Amsterdam Casualty Company. So far as I know, the New Amsterdam Casualty Company did not have any liability policy covering the old [Georgia Baptist Hospital] corporation. . . The only policy I know of covering accidents at all with the Georgia Baptist Hospital out there is the one that is covered
Plaintiff in error contends, in substance, that Mr. Binns authorized Mr. Smith to defend the hospital corporation. The testimony in this connection shows that Mr. Smith called up Mr. Binns and asked permission to use the hospital’s name in defending the suit, and upon being assured that it would cost the hospital nothing, Mr. Binns said “Go to it.” The fact that Mr. Smith got permission to use the name of the hospital in defending the Executive Committee in no way affects the merits of the contention of the plaintiff in fi. fa. The evidence is undisputed that the hospital as a corporation never employed any attorneys. The entire record shows that the Executive Committee owned and operated the hospital at the time of plaintiff’s injury, that it was the real tortfeasor, and that it, through the insurance company, defended the suit throughout the litigation.
The Executive Committee of the Baptist Convention of the
In dealing with the motion for a new trial we will discuss controlling principles of law only. It is alleged therein that the court erred in charging the jury as follows: “As an abstract principle of law, I instruct you that if a wrongdoer defends a suit, then he ox it is bound by the judgment of the court in a case in court in which he or it is the wrongdoer, and which suit he or it defends. In other words, if the Executive Committee corporation was the wrongdoer in the suit against the Georgia Baptist Hospital, and if the Executive Committee, by its agents or officers, defended that suit before the jury and through all the courts, then it (the Executive Committee’corporation) would be bound by that judgment, so far as the contest over the funds in controversy is con
It must be borne in mind that the Executive Committee owned and operated the hospital at the time of the injury to the plaintiff. In the decision in the case of Benson v. Shines, 107 Ga. 406 (33 S. E. 439), it was said: “While McCrory [the owner] was not made a party in the petition and while process was not prayed against him, and while there was no order taken in the county court to make him a party, we think his appearance in the court by filing a demurrer and a plea to the merits and introducing testimony thereunder made him a party to the action and he was bound by the judgment against his property. A person who is interested in the result of litigation may voluntarily make himself a party thereto by appearing and pleading, although he is not mentioned as a party in the petition, which prays no process against him.” In the case of Clark v. Wyche, 126 Ga. 24 (54 S. E. 909), Mrs. Wyche conducted business in the name of George Foundry and Machine Works. Clark Brothers gave a mortgage to the Machine Works for certain repairs. The mortgage was foreclosed and Clark Brothers filed a plea of recoupment and obtained a verdict. Mr. to this stage of the proceeding the name of Mrs. Wyche did not appear. Clark Brothers sought to enforce collection by process of garnishment. Mrs. Wyche then claimed the funds sought to be garnished, claiming that the judgment against the George Foundry and Machine Works was not binding upon her individually, for the reason that she was not a party to the suit and was not bound. In the decision of the Supreme Court it was said: “The only reasonable construction of the evidence leads to the conclusion that Mrs. Wyche conducted the foundry and machine works, employing the assumed name merely for the purpose of convenience.
In the case of Boehmke v. Northern Ohio Traction Co., 88 Ohio St. 156 (102 N. E. 700), Boehmke entered suit against the A. B. C. Co., for personal injuries received by him as he was about to enter a passenger car. Before the date of the injury the A. B. C. Co. was merged with another company and formed a company known as the N. O. T. Co., but the cars of the A. B. C. Co. still bore their name, and the plaintiff and his attorneys believed that the company of the same name still owned and operated the railway when the petition was filed. Summons was served on the A. B. C. Co. The answer to the petition was filed as the answer of the A. B. C. Co., but it was prepared and filed at the instance of the N. O. T. Co., and by the lawyers of the N. O. T. Co., who signed as attorneys for the A. B. C. Co., though they were then under pay of the N. O. T. Co. In reversing the circuit court and affirming the judgment of the common pleas court in favor of the plaintiff, the Supreme Court of Ohio said in part: “The notion of separate entity
In Central Consumers’ Company v. Ralston, 202 Ky. 94 (259 S. W. 67), Central Consumers’ Company, a Kentucky corporation, took over the properties of Frank Fehr Brewing Company, but continued to use the name Frank Fehr Brewing Company as a trade name in conducting part of its business. Ralston was injured in Tennessee by a team provided by the Central Consumers’ Company to be operated in carrying on the business in the name of Frank Fehr Brewing Company and he brought suit against the Frank Fehr Brewing Company. The Court of Appeals of Kentucky said “It is thoroughly established by the record, and not controverted by brief of appellant, that appellant, Central Consumers’ Company, was the sole owner of the Frank Fehr Brewing Company, which operated the place in Nashville at the time of the injury of Ealston, and that the Frank Fehr Brewing Company, under which its business was operated in Nashville at the time of the injury of Ralston, was a fictitious name employed by appellant for the purpose of concealing its identity, as well as for the purpose of enjoying the benefits of that trade name. . . Under the common law of Kentucky, which we must presume, in the absence of proof, although averred, was and is the same as that of Tennessee, a party defendant to an action, who appears and defends a proceeding brought against him or it in a fictitious name, without disclosing to the court his or its true and correct name, is concluded by the judgment of the court in the same manner and to the same extent as if he or it had been sued in its proper name. . . We conclude, therefore, all these facts considered, that the judgment given Ralston against the Frank Fehr Brewing Company, obtained in Tennessee and valid there, is valid here, and inasmuch as the Central Consumers’ Company was the owner and operator of the Frank Fehr Brewing Company’s wagon and team and business in Nashville at the time it struck and injured appellee, Ealston, it was the real party defendant in that trial, and when its employed counsel prepared and presented defense in that case it had its day in court, and the enforcement of this judgment in the Jefferson circuit court will not in any sense amount to a taking of its property without due process of law.”
The case of Eslinger v. Herndon, 158 Ga. 823 (124 S. E. 169),
In Lamberton v. Dinsmore, 75 N. H. 574 (78 Atl. 620), it was held that a judgment binds not only those shown by the record to have the right to defend, but also those who assume that right. In the case of Schmidt v. Louisville, C. & L. Ry. Co., 99 Ky. 143 (35 S. W. 135), it appears that the Louisville, C. & L. Co. had no property or means to conduct a defense, but liad only a franchise, and that the Louisville & Nashville Railroad Co. took charge of the defense of the case, controlled it, employed counsel, produced evidence, and paid the expenses of the nominal defendant in the suit. Tn the opinion in that case the court quoted approvingly from another decision as follows: “In our opinion, not only according to xmvarying authority on the subject, but on the principle of estoppel and common fairness, when a party enters his appearance and makes his defense to an action, he can not afterwards complain of the judgment that may be rendered against him, upon the ground that he was sued by the wrong name, or, what is practically the same thing, that the name of a different person was inserted in the caption of the petition and in the summons; and it therefore necessarily follows that the action must be regarded as commenced and actually pending against him, at least from the time he so enters his appearance, if not from the time he is served with
We have carefully examined the cases cited by the plaintiff in error. A detailed discussion of them would render unnecessarily long this already rather lengthy opinion. It suffices to say that each of them is differentiated by its facts from the case under consideration, and therefore is not controlling authority herein.
There being ample evidence to show that the G’eorgia Baptist Hospital had no physical properties and was inactive as a corporation at the time of the injury to the plaintiff, that it was never served with and did not defend the suit in this case, that said hospital was owned by the Executive Committee of the Baptist Convention of the State of Georgia and was operated by it under the trade name of Georgia Baptist Hospital at the time of the injury to the plaintiff, that the Executive Committee was the wrongdoer, was served with the suit, and appeared and defended the action; and there being ample evidence to support the jury’s verdict finding in favor of the traverse to the answer of the bank and holding the funds of the garnishee bank subject to the judgment of the plaintiff in fi. fa., and no reversible error of law being pointed out by the motion for a new trial, there is no reason in law, good morals, or justice why the Executive Committee should not be bound by the judgment in this case, and we therefore hold that the trial court did not err in overruling the motion for a new trial.
Judgment affirmed.