Burnett v. Layman
| Decision Date | 14 December 1915 |
| Citation | 181 S.W. 157,133 Tenn. 323 |
| Parties | BURNETT v. LAYMAN. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Civil Appeals.
Action by Marion P. Burnett against R. B. Layman. After affirmance by the Court of Civil Appeals of a judgment on directed verdict for defendant during the term plaintiff died, and the cause was revived in the name of the administrator. On petition for certiorari. Reversed and remanded for new trial.
This suit was brought to recover damages for alleged malpractice from the defendant, a physician, at Knoxville.
The circuit court directed a verdict in favor of defendant, and the judgment entered was affirmed in the Court of Civil Appeals at its Knoxville term, 1914. During the same term of the Court of Civil Appeals the plaintiff died, and an effort was made to revive the suit in that court in the name of Manda Burnett, "his widow and next of kin," under sections 4025-4029, Shannon's Code, and a petition for certiorari was prosecuted to this court in the name of said Manda Burnett, his widow and next of kin.
We dismissed this petition (130 Tenn. 423, 171 S.W. 76), holding that the sections of the Code just referred to governing an action in case of death by wrongful act had no application to the present case, but that this case fell within the terms of Shannon's Code, § 4579, which provides that:
"Suit abated by the death of either party, may be revived by or against the heir, personal representative, guardian, or assign, as the case may be, who may be legally entitled to the decedent's place in the subject-matter of litigation."
The court said:
"The personal representative is in the present case the successor in interest of the deceased plaintiff, or, in other words, the one 'legally entitled to the decedent's place in the subject-matter of the litigation,' and the suit should therefore have been revived in his name." Burnett v. Layman, 130 Tenn. 423, 425, 171 S.W. 76.
At the 1915 Knoxville term of the Court of Civil Appeals, an administrator having meanwhile qualified, the suit was revived in the name of said administrator in that court, and a petition for certiorari to this court has been filed by the said administrator at our present term.
The first question that arises is whether this petition for certiorari can be sustained under section 8, c. 82, Acts of 1907, providing that certiorari shall not be issued by this court to the Court of Civil Appeals after a lapse of 90 days from the final judgment or decree of that court. In view of this statutory provision, can this court now review a judgment of the Court of Civil Appeals entered at its 1914 term at Knoxville? Under the circumstances of this case, we think we have such power.
Section 4570 of Shannon's Code is as follows:
"The intervention of a term between the death of a party and the qualification of a personal representative shall not work an aoatement or discontinuance of the suit; nor shall the suit abate or discontinue for the death of either party until the second term after the death has been suggested and proved or admitted, and entry to that effect made of record." A suggestion of the death of plaintiff was made and entered of record in the Court of Civil Appeals when the attempt was made to revive in the name of the widow. The attempted revivor in this manner was beyond the court's jurisdiction and a mere nullity, but the suggestion of death was made and admitted and entered of record.
Plaintiff's death deprived the judgment of the Court of Civil Appeals of its final character. No execution could have issued thereupon until revivor; nor could the suit have been abated or discontinued for two terms under the express provisions of Shannon's Code, § 4570, above quoted. Something else remained to be done in the Court of Civil Appeals.
Therefore the final judgment in the Court of Civil Appeals herein was the order of revivor in the administrator's name duly made by that court under section 4570, Shannon's Code, at its 1915 term, and this petition for certiorari comes within 90 days from that order and was properly allowed.
Burnett was being treated for a bladder trouble, and it was thought necessary by the defendant to sound the urethra. In the performance of this operation there is some evidence tending to show that the lining of the bladder was "pocketed" or perforated by the sound.
A physician does not guarantee the cure of his patients. Presuming a careful diagnosis, a physician is not liable for damages resulting from an honest mistake in determining upon the character of treatment to be administered, or in...
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Church v Perales
...he [or she] intends to quit the case and affords the patient opportunity to procure other medical attendance. Burnett v. Layman, 133 Tenn. 323, 329-30, 181 S.W. 157, 158 (1915).14 The law imposes this duty on treating physicians in recognition of their responsibility to avoid a lapse in nec......
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Wicks v. Vanderbilt University, No. M2006-00613-COA-R3-CV (Tenn. App. 3/21/2007)
...Mem'l Hosp., 168 S.W.2d 491, 495 (Tenn. Ct. App. 1942); Floyd v. Walls, 168 S.W.2d 602, 607 (Tenn. Ct. App. 1941); Burnett v. Layman, 133 Tenn. 323, 328-30 (Tenn. 1915)). In malpractice cases involving the skill of a physician, the case will be controlled exclusively by expert testimony, ex......
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Campbell v. Oliva, 19810.
...the presumption that there was a "careful diagnosis". Haskins v. Howard, 159 Tenn. 86, 16 S.W.2d 20 (1929), citing Burnett v. Layman, 133 Tenn. 323, 328, 181 S.W. 157 (1915). In the present case there can be no such presumption. The question whether Oliva made a careful diagnosis was a disp......
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Floyd v. Walls
... ... judgment, but only for the negligent failure to meet the ... standards required by the profession in the community. As ... said in Burnett v. Layman, 133 Tenn. 323, 328, 181 ... S.W. 157, 158, "A physician does not guarantee the cure ... of his patients. Presuming a careful diagnosis, ... ...