33 Ga. App. 733 | Ga. Ct. App. | 1925
Mrs. F. D. Jeter brought a suit against Dr. E. C. Davis and Davis-Fischer Sanitarium Company. The sustaining of, a general demurrer filed by the company was affirmed by this court in Jeter v. Davis-Fischer Sanitarium Co., 28 Ga. App. 708 (113 S. E. 29). To the statement of the allegations of the petition there set forth, the following may be added as relevant to the case as charged against the doctor: “Petitioner shows that her said
Upon the trial of the case against Dr. Davis the verdict was in favor of the defendant. The plaintiff made a motion for a new trial, -which was overruled, and she excepted.
In one of the special grounds of the motion for a new trial complaint is made of the following charge of the court: “Of course, you will understand, if Dr. Davis did this thing properly, and if he had their consent in doing of it, and if this lady left the hospital in that condition and the wound afterwards became infected from some other reason or cause than what he had done, he would not be liable for anything that occurred in consequence." It is assigned that this charge was error for the reason that there is no proper way to commit a wilful and wrongful trespass on the person of another, and because it “confused the skill of the doctor and the right to cut plaintiffs arm to such an extent that the jury was unable to intelligently understand the said charge, ami was prejudicial to the plaintiff.” It is further alleged that the charge was error because there was no contention or evidence that the plaintiffs arm became infected'from any other cause than the defendant’s act in cutting it.
As will be observed, the plaintiff contended that although she consented to a transfusion of her blood to one of the defendant’s patients, she did so only upon the condition that the blood should be extracted from her by a needle and in no other way, and that the defendant, in violation of the terms of the consent given, cut her arm with a knife, for the purpose of obtaining the blood, and thus wrongfully inflicted a serious injury. There was evidence on behalf of the plaintiff which, if believed by the jury, would have established the allegations of her complaint. On the other hand, the defendant testified, and introduced witnesses who also testified, to the effect that the plaintiff offered herself unconditionally for the purpose of the operation, and contended, therefore, that in cutting her arm he was acting with the plaintiffs consent, either express or implied. The testimony on behalf of the defendant further tended to show that the operation was performed properly, and that all proper diligence was exercised to prevent infection. While the defendant filed only a general denial to the allegations of the petition, his evidence, to which-we have just alluded, was
The defendant would uphold the charge on the idea that the suit, properly construed, is one for negligence. In this position we can not concur, in view of the allegations of the complaint. The plaintiff says her action is nothing more nor less than an action for assault and battery. While it is unnecessary to determine whether this contention is correct or not, it would seem to the writer that the defendant was not guilty of a trespass upon the plaintiff’s person, where her consent was given to the drawing of the blood in some way. According to her contentions he merely exceeded -his authority. Where a person having license from the law to do an act abuses or exceeds his authority, he becomes a trespasser ab initio. But when the complaining party himself grants a license which he might have granted or not, at his option, the remedy for an abuse is not broader than the abuse itself. The licensee is not*-rendered a trespasser from the beginning, but is liable on the special case for any violation of the terms of the license. Sheftall v. Zipperer, 133 Ga. 488 (2) (66 S. E. 253, 27 L. R. A. (N. S.) 442); Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 (6) (72 S. E. 51). But whether the plaintiff’s counsel has correctly classified the suit or not, it was not an action for negligence. And yet, since there was. evidence tending to sustain the defendant’s contention that the defendant and his assistants performed the operation with due skill, and also that they had the plaintiff’s consent in doing it, the first assignment upon the charge is clearly without merit. Was there any evidence to authorize the inference that the wound became infected from some other reason or cause after the plaintiff left the hospital ? If the plaintiff’s contentions are true, the wrong committed upon her was a positive tort, even though it may not be considered as a trespass upon the person, and she was not bound to do anything to lessen the damages.
As already stated, the defendant offered evidence to show that the wound was properly made and properly cared for during the time that the plaintiff was in his charge. This would be some evidence that the infection was from some independent cause. A physician who treated her at her home for some time after the operation testified: “As to what caused her arm to be infected, I don’t know; she was very imprudent, she unwrapped her arm, took the dressing off, and showed it to neighbors several times. I know that to be a fact. 'She showed it to my wife, and put the dressing back on and showed it to Mr. Harvey, and I think part of her condition was secondary infection, infected again. It was not infected the first time I saw it, it was swollen, but that is not necessarily a sign of infection; you may have that without infection. Her arm was bound tight when I first saw it, and I released the tension, not because it was infected, but it was pretty tight, and I simply wanted to give it a little relief. That would not cause it to he infected.”
We can not say that there was a total lack of evidence to show that a part of the plaintiff’s trouble was brought about by her own mistreatment of the wound. The excerpt complained of is not subject to any of the exceptions taken thereto. The rulings here made will dispose of grounds 1 and 5 of the amendment to the motion for a new trial.
Error is also assigned upon the following charge: “That is the contention of the defendant, that they were under no duty after the operation. Of course, you will understand, after' the operation and after the leaving of the hospital, that Dr. Davis would not be responsible for anything occurring that was not the direct and proximate cause, caused by this alleged infection or
In Central Railroad v. Freeman, 75 Ga. 331 (2), the Supreme Court held that in an action for a tort there was no error in charging the jury that the burden was on the plaintiff to show, among other things, that the injury was the direct and proximate consequence of the defendant’s negligence. While this is not a case of negligence, the same rule of responsibility on the part of the wrongdoer for consequences would apply; except that, as seen in the preceding division of this opinion, the plaintiff was under no duty to lessen the damages. See also Shields v. Georgia Ry. & Electric Co., 1 Ga. App. 173 (1) (57 S. E. 980); Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906). From what is said in the preceding division the charge was warranted by the evidence.
Another ground of the motion complains that the court erred in charging the jury.as follows: “The burden is on her to show that this produced an injury, and the bru-den of proof is on her to show what the injury was and the extent of it; that is to say, those things must be shown by her before the defendant would be required to malee a defense.” It is assigned that this charge “was error for the reason plaintiff would be entitled to recover nominal damages when she showed the cutting of her arm was done- without her consent and contrary to an agreement with Dr. Davis not to cut her arm, whether she suffered any injuries or not, and the said charge deprived her of that right.” In our opinion this charge was error. It has been frequently held that in a suit for special damages alone, where the plaintiff is not entitled to recover the special damages sued for, there can be no recovery of general or nominal damages. “Generally the rule that in every case of breach of contract the other party has the right to recover nominal damages does not apply where only special and punitive damages
The plaintiff excepts to the manner in which the court complied with one of her requests to charge, in that the court prefaced the instructions with the words, “I have been requested to tell you,” etc. Under the ruling of the Supreme Court in Dotson v. State, 136, Ga. 243 (3) (71 S. E. 164), there is no cause for new trial in this assignment.
The court instructed the jury as follows: “It is claimed in this case by this plaintiff that this cutting of her arm was done not only without consent, not only contrary to an agreement not to do it, but that it was done wilfully and maliciously. You look to the evidence and see whether there was intent wilfully and maliciously in this cutting.” There was no error in the failure of the court to define the words “wilfully” and “maliciously.” Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (3) (124 S. E. 92). Nor is this excerpt subject to the complaint that it implied that proof of the defendant’s bad motive was essential to a recovery, it appearing from the cognate portions of the charge that the jury must have understood that they were to consider the question of the intent merely for the purpose of, estimating the damages, in the event of a finding for the plaintiff.
In another portion of the charge the judge instructed the jury as to the defendant’s contentions, and then said: “Of course, if he did this thing properly and there was some form of infection from any other source or cause after this lady left his hospital, he would not be liable.” The language quoted was error, for the reason that it failed to include as a condition of non-liability that the plaintiff consented to that which was done. If the cutting of her arm was done contrary to her consent and instructions, the defendant would be responsible whether he did it properly or not. The use of due care and sufficient skill would not relieve him.
Two other special grounds of the motion for new trial .were as follows: “8. Movant insists that the court erred in not giving-in charge the law essential and applicable to the case on trial, which case was a suit for the wilful trespass on the person of plain
In another ground of the motion for a new trial it is complained that the court allowed “the introduction of chart which is in the record, over objections that the same was not identified by any witness or otherwise as being correct.” This ground is imperfect, because it does not set forth the document, in form or substance, so that this court may determine from the assignment itself what were the contents of the evidence objected to. McCollum v. Thomason, 32 Ga. App. 160 (8) (122 S. E. 800).
Under the rulings contained in headnotes 3 and 6 and the corresponding divisions of this opinion, the court erred in overruling the plaintiff's motion for a new trial.
Judgment reversed.