34 Ga. App. 355 | Ga. Ct. App. | 1925
(After stating the foregoing facts.) 1. “If a plea is bad in substance, the defect may be taken advantage of by objecting to evidence in support of thé plea.” Rountree v. Craigmiles, 12 Ga. App. 237, 239 (77 S. E. 15, 16); Crew v. Hutcheson, 115 Ga. 515, 524 (42 S. E. 16).
2. The obligation which the law imposes upon persons performing medical, other professional, and • specially skilled services, is that they shall exercise a reasonable degree of care, skill, and ability; which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions. On a plea of recoupment, setting up a failure to exercise proper care and skill by such a plaintiff, suing to recover upon contract the value of his services, the burden of sustaining such a plea is on the defendant. Block v. Happ, 144 Ga. 145, 146 (1 a, 2) (86 S. E. 316); Fincher v. Davis, 27 Ga. App. 494 (1, 2, 5) (108 S. E. 905); Chapel v. Clark, 117 Mich. 638 (76 N. W. 62, 72 Am. St. Rep. 587, 42 L. R. A. (N. S.) 125, 126). This rule applies to the implied duties of such a plaintiff, whether the defense is based on a tort for the negligent performance of contractual duties, or on an alleged breach of the contract itself.
3. Section 5521 of the Civil Code (1910) provides that “all
4. No contention is made that the plea might be treated as purely defensive to the extent of the amount sued for by the plaintiff. Under the rulings above cited, and the language used in Burnett v. Davis, 124 Ga. 541, 544 (52 S. E. 927), wherein it was held that “a city court has jurisdiction to entertain an equitable plea which is purely defensive in its nature, and which if sustained would result simply in a verdict finding generally in favor of the defendant, or reducing the amount of plaintiff’s recovery, when such reduction is not brought about by the exercise of any of the extraordinary powers of a court of equity, such as cancellation, reformation, equitable set-off, and the like,” it does not seem that any such construction would be sound. But however this might be, and even were it possible to treat the plea,
5. The grounds of the motion for a new trial relating to the proper amount of recovery, and the general grounds, not being argued or insisted upon, will be treated as abandoned,. '
Judgment affh'med.