9 Ga. App. 450 | Ga. Ct. App. | 1911
Glawson, on behalf of himself and minor children, filed a petition seeking to recover damages from the Southern Bell Telephone & Telegraph Company on account of the death of his wife, alleged to have been occasioned through the defendant’s negligence. The trial court sustained a demurrer to the petition, and the case comes to this court on exception to this ruling.
The petition alleges, in substance, that the defendant is a telephone company engaged in the public service of operating telephone exchanges and long-distance telephone lines, and that it holds itself out as ready and willing to serve the public in this capacity; that Glawson and his family were subscribers to the defendant’s exchange at Americus, and that one Dr. Prather, their family physician, was a subscriber to the same exchange; that Dr. Prather lived in Americus, and the plaintiff lived about seven miles away in the country; that on the 3d day of October, 1909, Mrs. Glawson, who was then about seven months advanced in pregnancy, was threatened with a miscarriage and Dr. Prather examined her condition and returned to the city, but agreed to remain at his residence, ready to answer any telephone call, and to come at once to Mrs. Glawson if his services were needed, and he so remained in readiness to come upon telephone communication. About 3 o’clock in the morning Mr. Glawson called up Dr. Prather and had a short talk with him. about his wife’s condition,, but at the moment of that conversation it was not deemed necessary that the physician should come; but, immediately after this conversation was discontinued, Glawson found that more serious symptoms had set in, and went back to the telephone for the purpose of calling the physician to come at once. He was unable to get the operator in the central office at Americus to answer his call or to give him communication with the physician. He kept up his efforts to get into communication, and, after a period of 2 hours and 20 minutes, succeeded, and the physician came at once in his automobile, arriving within 20 minutes after the call reached him. In the meantime Mrs. Glawson’s condition grew precarious, and neighbors who sometimes acted in the capacity of
We do not construe the present action as being a suit brought for pain and suffering alone. While mental anguish on the part of the husband and of the children who were bereft of wife and mother is set up, still, as will be seen later, these elements are to be eliminated. The action is based upon section 4424 of the Civil Code (1910), which provides: “The husband may recover for the homicide of his wife, and, if she leaves child or children surviving, said husband and children shall sue jointly, and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit if either die pending the action.” The next succeeding section of the code provides that the word “homicide,” as used in that context, includes “all cases where the death of a human being results from a crime or from criminal or other negligence.” This section, as well as the section referred to above, provides that the measure of damages shall be the “full value of the life of the deceased, as shown by the evidence.” The damages
We are aware of the fact that the courts are in wide disagreement as to whether damages which result through the failure to get a physician, so that the progress of a malady can be cheeked or the effects of a wound can be allayed, and injurious results prevented, are speculative and remote within the meaning of the rules just quoted. Some courts go almost to the extent of holding that it is impossible from a human standpoint to say what would be the result of a physician’s services in checking almost any known disease
There are some diseases, such as cancer, tuberculosis, typhoid fever, meningitis, etc., as" to which the court might say, as a matter of law (basing its conclusion upon the state of common knowledge), that the chances of recovery are always speculative and doubtful. There are other diseases as to which, perhaps, the court might say, as a matter of law, that they would yield to proper treatment, basing this conclusion upon the common knowledge of mankind. Between these two classes exists a wide class as to which common knowledge is not so well established; and in these cases the question as to whether the results of a physician’s or a surgeon’s services would or would not be doubtful or uncertain is a question -of fact, and, being a question of fact, is a question for the jury. Juries are frequently called upon to settle the probability of things, and to determine, according to human experience, whether this or that result likely did ensue or will ensue from this or that somewhat problematic cause. For instance, it is a common thing for a court to submit to a jury the question as to whether an injury will prove permanent, and to allow them to assess the damages with reference to their finding as to this question — a question often problematical to a high degree.
Now, if it is practically certain that a physician, by the applica
Those who hold that eases such as this are too problematic and speculative for solution by the jury seem to us to make an unwarranted distinction between causal acts of omission and causal acts of commission. For example, suppose that a woman had been recently delivered of a child, and that the physician or midwife had applied packing or some other appliance to her organs with a view of preventing a hemorrhage, and by some wrongful act of commission these appliances wrere removed and the hemorrhage ensued, but few courts, if any, would hesitate to hold
Now, coming back to the case at bar: We are-going to reverse the judgment of the lower court in sustaining the general demurrer, and it will thus become a question of proof as to whether the woman’s death in this case was the direct and natural result of the defendant’s act or not. Before it will be proper to award the plaintiff any damages, the jury should be able not only to trace a connection between a negligent failure of the telephone company to give the plaintiff communication with the physician and the death of the woman, but they should also be able to say with practical certainty that her death was the natural consequence of the defendant’s neglect. They must be able to go further and say that the death was not merely the imaginary or possible result of the tortious act, but that according to the course of human experience it was the direct result — that in all human probability this result would not have happened if the defendant’s neglect had not hap