Bryan v. Grace
| Decision Date | 16 October 1940 |
| Docket Number | 28516. |
| Citation | 11 S.E.2d 241,63 Ga.App. 373 |
| Parties | BRYAN v. GRACE. |
| Court | Georgia Court of Appeals |
R J. Bacon, of Albany, for plaintiff in error.
Leonard Farkas and Walter H. Burt, both of Albany, for defendant in error.
Mrs. L C. Bryan brought suit against Dr. R. L. Grace in three counts. The first count alleged that the defendant was a practicing doctor of dentistry and dental surgery, and that on or about July 1, 1937, she went to his office in Albany Georgia, for the purpose of having her teeth examined and receiving proper advice and treatment in connection with them and determining whether or not they should be extracted; that the defendant did not take any X-ray of her teeth but undertook to treat the same, assuring her that she did not need to have her teeth pulled but that they could be treated successfully and her mouth cured; that said advice was unskillful and negligent and that the teeth that remained in her mouth at the time that she went to the defendant were all badly affected with pyorrhea in the extreme state of such disease, and that there were pockets of pus under each of the teeth, and that an X-ray would positively have disclosed the presence thereof; that in trying to treat her teeth an X-ray should have been taken before any other course should be pursued than extracting all of the teeth; that the defendant pulled only three of her teeth when he should have pulled out all of her remaining teeth; that when she went to his office all of her lower teeth were in her mouth with the exception of one wisdom tooth and one front tooth; that by reason of the negligent and unskillful acts of the defendant, who undertook the impossible job of treating her teeth instead of extracting them, the plaintiff has been caused to suffer untold pain and misery and her life has been in danger because of the poisoned condition of her system from the said teeth that needed extracting as aforesaid, and the toxic condition of her body brought on great agony and pain and she has had to have extensive medical treatment for the systemic poison; that she has had to have her teeth extracted since that time, and that the cause of all her affliction since that time has been the teeth remaining in her mouth as aforesaid which by proper dental care should be extracted that since that time she, on February 20, 1939, had her lower right molar extracted, on February 23, 1939, three teeth on the lower right side, on March 18, 1939, two teeth, and some time in June, the exact date being unknown, two more teeth, so that there now remains only two other teeth in her head that should have been extracted by the defendant. Judgment was prayed in the sum of $10,000.
The second count contained allegations similar to those in the first count except that she alleged that the defendant's advice was wilfully wrong, in that her teeth then and there demanded extraction by reason of their condition, and the defendant wilfully refused to extract the teeth and advised instead that plaintiff should come to him repeatedly for treatment of the teeth, thereby seeking to secure a great number of visits to his office by plaintiff, for each of which there would be a charge, and thereby plaintiff would not only have been much in his company but would have run up a very large dental bill;
that her teeth were all badly affected with pyorrhea in the extreme stage of such disease, there were pockets of pus under each of the teeth, and an X-ray would positively disclose the presence of such pockets, and that in trying to treat the teeth an X-ray should have been taken before any other course should be pursued except that of extracting all of the teeth; that the motive of the defendant in refusing to extract the teeth was to require the plaintiff to come on frequent visits to his office over a long period of time, and that after she refused to go on with his treatments he wrote her frequent letters asking her to return to his office for treatment and that he came to her personally to induce her to return to his office, which she positively refused to do. Judgment was prayed in the sum of $10,000.
The third count contained allegations similar to those in the second count with the additional allegations that, as a patient of the defendant, she was required to come for her appointment at six o'clock in the afternoon, which was the time when the assistants in his office had finished their work and completed their hours for the day and were leaving; that she arrived at ten minutes to six and the defendant scolder her for not coming at six and said for her to come next time exactly at six, not five minutes before and not five minutes after; that in accordance with these instructions and this appointment she arrived for her next dental work promptly at six o'clock in the afternoon just as the assistants in and about the defendant's work were leaving the building; that the defendant put her in the dental chair as usual, but then diverted from his usual course with her by bringing in material to spread on the floor for a pallet, and did spread out a pallet on the floor, which was entirely unnecessary for dental operations and entirely inconsistent with the idea of work on her teeth; that when, in addition to that, the defendant unbuckled his belt that held up his trousers and made a gesture as if to unbutton his trousers in front, she turned and immediately left his office and has not been back since; that this was indecent conduct on the part of the defendant dentist towards his patient, and was in violation of the statute of Georgia making it criminal for a dentist to act indecently towards his patient, and that it was his intention then and there by the acts aforesaid to suggest and invite the breach of plaintiff's marital vows on her part and to solicit sexual intercourse with her. She prayed for general, actual, and exemplary damages in the sum of $10,000.
The defendant filed general and special demurrers, whereupon the plaintiff amended her petition by adding to each of the counts allegations that when the defendant examined her teeth as aforesaid her mouth was in such a condition that any dentist or medical doctor ought to have known by simple inspection that she had pyorrhea in a very advanced stage, and that extraction of her teeth was necessary to protect her from systemic poison by reason of the diseased teeth; that the demurrers filed in the present proceeding have been ruled on between the parties in the city court of Albany in favor of plaintiff and no exception was taken by the defendant to such ruling, and that the present action is a renewal of the said case in the city court of Albany within six months of its dismissal, and that the ruling on demurrers is binding on the defendant and the same grounds of demurrer can not be renewed.
The defendant renewed his general and special demurrers to the petition as amended and demurred on additional grounds. The court passed an order, reciting that after hearing the defendant's demurrers it allowed plaintiff further time in which to amend, which amendment was filed and allowed subject to demurrer, and that the defendant having renewed all grounds of the original demurrer the demurrers were sustained on all grounds thereof, and the exception here is to that judgment.
The defendant demurred specially to the allegation of the petition in respect to an alleged prior determination against the defendant in the city court of Albany, of the demurrers filed therein by the defendant similar to those in the present proceeding, the ground here alleged being that the allegation was vague, indefinite, and uncertain in its failure to attach a copy of the entire proceedings in the city court so as to show what judgment was rendered and whether or not the same had become final or was pending, and that the allegation as to a dismissal failed to show whether it was voluntary or unvoluntary or any part of the same dismissed by a verdict of the jury and judgment of the court. The defendant was entitled to a more definite statement than that shown by the pleadings, and, the plaintiff failing to amend as...
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...has resulted unfavorably does not raise even a presumption of want of proper care, skill or diligence.' See also Bryan v. Grace, 63 Ga.App. 373, 379, 11 S.E.2d 241. Furthermore, as is pointed out at page 21 of appellee's brief, other portions of the charge substantially covered the principl......
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