Loudermilk v. Terrell

35 S.E.2d 926 | Ga. Ct. App. | 1945

The court did not err in sustaining the general and special demurrers to the petition and in dismissing the suit.

DECIDED NOVEMBER 21, 1945. Mrs. E. V. Loudermilk sued Dr. J. H. Terrell and Dr. C. J. Sapp, alleging that they were "regular physicians in medical surgery . . specializing in X-ray therapy and ray treatments, and holding themselves out to the public to be experts in X-ray therapy;" and that she entered Dr. Terrell's office in June, 1943, to have her right hip examined, and under his diagnosis she was placed under an X-ray or ray machine for an X-ray picture taken by Dr. Sapp. After returning home she had severe pain in the right hip and was forced to bed, where she remained constantly in pain and suffering until July 1943. In March, 1944, the plaintiff went to Stephens County Hospital, under the supervision, advice, and care of the defendants, and underwent an operation on her right hip "for the purpose of correcting the burns made by said X-ray or ray machine administered in March, 1943, by the defendants." By amendment the plaintiff alleged that she showed the burn on her hip to Dr. Terrell in June, 1944, that he remembered the X-ray picture made by Dr. Sapp under his direction, and he advised the plaintiff to have an operation on her hip, and have skin grafted thereon, and guaranteed that this would cure the hip, and agreed to defray all medical and hospital bills. It was also alleged that there was an X-ray machine in the defendant's office and one in the Stephens County Hospital, and that the defendants used both in their business and profession; that the "defendants had mechanical trouble with the X-ray machine in their office before and after said picture was made of plaintiff;" that the defendants knew or should have known that the X-ray in their office "was not in mechanical condition to take said X-ray picture," and that with said knowledge they used said defective machine in making the picture of the plaintiff, although they could have used the X-ray machine in the Stephens County Hospital.

The petition alleged that the plaintiff was unable to sleep and do her housework, and was nervous and in constant pain and suffering, as a result of the negligence and carelessness of the defendants in applying said X-ray or ray treatments; and that she had been bedridden and in ill health since June, 1943, and was likely to be in that condition for a number of years, and had been injured and damaged in the sum of $10,000.

In her original petition, the plaintiff charged negligence against the defendants in using the X-ray or ray machine by placing it at an improper distance to her right hip; in failing to provide and administer medical aid immediately after said treatment, and in failing to exercise reasonable care and skill as required by law. In her amendment, she alleged as negligence of the defendants the use by them of a defective X-ray machine, when they had access to a better machine, in taking the picture of the plaintiff; the failure of the defendants to use the X-ray machine in the Stephens County Hospital instead of the one in their office, and their failure to cure the plaintiff's hip as guaranteed by them. The trial judge certified, in approving the bill of exceptions, that the attorney for the plaintiff conceded in open court "that the only act of negligence relied upon by the plaintiff in the case was the failure of the defendants to use X-ray equipment owned by Stephens County Hospital, rather than the X-ray equipment owned and used by the defendants."

General and special demurrers were filed by the defendants to the petition as amended, all of which were sustained and the suit dismissed. The exception is to that ruling. Since the plaintiff relies altogether on the alleged negligence of the defendants in their failure to use the X-ray equipment owned by the Stephens County Hospital instead of their own X-ray equipment, we cannot consider any other allegation of negligence. Those relating to this ground of negligence may be summarized as follows: that there is an X-ray machine in the office of the defendants and one in the Stephens County Hospital, both of which are used by the defendants in their profession; that the defendants had mechanical trouble with their X-ray machine both before and after the picture was made of the plaintiff; that the defendants knew or should have known that the X-ray machine in their office was not in mechanical condition to take the said X-ray picture of the plaintiff, but proceeded with said knowledge to make a picture, resulting in the injury to the plaintiff; that the defendants could have used the X-ray machine in the hospital in taking the picture, and in using an inferior machine with access to a better machine the defendants failed to exercise due care, skill, and diligence in performing their professional duty.

The demurrers to these allegations in substance were that they set out no issuable facts, and were mere conclusions, without supporting allegations of facts, and did not show what the mechanical trouble was with the machine they used, or how it contributed to or caused the injury.

In passing on a general demurrer, the petition must be construed most strongly against the pleader. Lee v. Malone,55 Ga. App. 821 (191 S.E. 494); Liberty Mutual Ins. Co. v.Lipscomb, 56 Ga. App. 15 (2) (192 S.E. 56). The allegations of negligence depended on by the plaintiff, and the demurrers challenging their sufficiency to state a case, all speak for themselves and require no elaboration by us. Under the well-settled rules of practice in the cases cited, we think it apparent that the demurrers were properly sustained by the trial court. See Bryan v. Grace, 63 Ga. App. 373 (2) (11 S.E.2d 241).

Judgment affirmed. Sutton, P. J., and Felton, J., concur.