37 Ga. App. 314 | Ga. Ct. App. | 1927
William Joseph Perry, a minor eighteen years of age, by his father and next friend, James A. Perry, brought an action for damages against Dr. F. G. Hodgson. The jury rendered a verdict for the defendant, and the plaintiff excepted to the judgment of the court overruling his motion for a new, trial.
Omitting the formal parts, the petition may be summarized as follows: When plaintiff was a small boy he suffered from a bone infection of the spine, for which ho received surgical treatment that arrested the disease and left him with some lameness in his left leg, but with the ability to ride a bicycle or motorcycle, drive an automobile, and do most other things that a normal boy could do. In 1925, the plaintiff had not suffered from the said disease other than a slight limp for six years, the said infection was under control, and he could do the things usually done by a boy of his age. Defendant, whose son was a close friend of plaintiff, often saw plaintiff, and on one occasion said to him: “I want to perform a slight operation on you, and straighten your leg. There is no use in your going through life lame.” Two weeks later the defendant repeated the same statement to the plaintiff and requested that plaintiffs father come to see defendant about the said operation. Plaintiffs father called to see defendant, who said that he had such conversation with plaintiff and that he was very anxious to operate, and stated to plaintiffs father in substance what he had already told plaintiff. Defendant further said “that he would perform a minor operation by going under the skin and clipping some leaders and muscles, which would straighten plaintiffs leg; that he would have plaintiff on crutches in three weeks after the operation and completely well in six weeks.” Defendant had been associated with the surgeon who' had treated plaintiff for said affection, and was familiar with his condition. At said interview plaintiffs father told defendant “that in said operation it would never do to go anywhere near plaintiffs hip-joint or the ftrack5 through which said controlled infection drained.” Defendant said that he would not do so, “that he
The evidence in this case is in sharp conflict, and, under the law, this court is without authority to set aside the verdict for defendant upon the general grounds of the motion for a new trial.
In charging the plaintiff’s theory of the case, that the defendant committed' a breach of his duty if he performed a different operation from the one he contracted to perform, the court said: “Such other or additional operation would be considered in law a trespass upon the person of the -patient, unless the surgeon could show that such other or additional operation was necessary to save the life of, or prevent injury to, the patient, and there existed an emergency in which the consent of the patient or some person authorized to act for him could not be obtained.” This instruction is complained of in the motion for a new trial, on the following grounds: (a) It is an erroneous statement of the law as applied to the issues and evidence in the case. (b) It was not founded on any evidence, and was outside of any legal issue made in the case, (c) It was not adapted to the issue and the evidence in said ease, and was confusing to the jury in suggesting an issue and a defense not raised or supported by the evidence, (d) Because the undisputed evidence shows that the father and mother of plaintiff were in the same building where the operation was performed and readily accessible during the whole time of said operation.
“The general rule is that instructions by the court to the jury must be warranted by the evidence. Where instructions are given that are not warranted by the evidence and are calculated to mislead and confuse the jury, the error requires a new trial.” Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (76 S. E. 387, Ann. Cas. 1914A, 880). However, the reviewing court looks to the whole record to see if the complaining party suffered prejudice. Kirkland v. Brewton, 32 Ga. App. 128 (2) (122 S. E. 814); Gate City Dairy Co. v. McRae, 164 Ga. 810 (139 S. E. 542). While
The remaining grounds complain of the admission in evidence, over the plaintiff's objection, of the testimony of various surgeons to the effect that the operation performed was recognized by the profession as a proper one, and was proper in the plaintiff's case. The testimony complained of in each of the said fifteen grounds was to the same effect, and in each instance the same objection was made, to wit: “that it was irrelevant in the case, that the issue upon .this point was not as to the character of the operation as being good surgery or not, or being skilfully performed or not, but the issue was as to whether or not the operation was the operation contracted to be performed.” Bearing in mind that the defendant's plea denied the alleged contract and averred that the operation performed was done in a skilful, careful, and proper manner, and alleged that plaintiff’s condition was not due to any act of negligence on the part of defendant, we find no error in any of these grounds.-
Judgment affirmed.