Buttersworth v. Swint, 10729.

• Decision Date: 15 November 1935
• Docket Number: No. 10729.,10729.
• Citation: 181 Ga. 430,182 S.E. 520
• Parties: BUTTERSWORTH. v. SWINT.
• Court: Georgia Supreme Court

181 Ga. 430

182 S.E. 520

BUTTERSWORTH.

v.SWINT.

No. 10729.

Supreme Court of Georgia.

Nov. 15, 1935.

Syllabus by the Court.

This is a suit seeking to recover damages for alleged malpractice and neglect on the part of a physician. No equitable relief is prayed, nor are any facts alleged authorizing the jurisdiction of equity. The sole prayer of the petition is for a money judgment for specified items of damages. This court is without jurisdiction; and accordingly the case is transferred to the Court of Appeals, which has jurisdiction.

Error from Superior Court, Baldwin County; James B. Park, Judge.

Petition by Mrs. Ola Resseau Butters-worth against Dr. R. C. Swint. To review a judgment dismissing the petition on demurrer, plaintiff brings error.

Transferred to the Court of Appeals.

McCullar & McCullar, of Milledge-ville, for plaintiff in error.

Marion Allen and Sibley & Allen, all of Milledgeville, M. J. Yeomans, Atty. Gen, and B. D. Murphy and Jno. T. Goree Asst. Attys. Gen., for defendant in error.

RUSSELL, Chief Justice.

Mrs. Ola Resseau Buttersworth filed a petition against Dr. R. C. Swint, which she denominates as being "in equity." She alleges that the defendant is superintendent of the Georgia State Sanitarium at Milledgeville, and was such superintendent from May, 1926, until September, 1928; that during this time the petitioner was employed as an attendant at said institution, and while in the discharge of her duties as such attendant suffered an injury which produced an umbilical rupture; that defendant, though charged with the duty of rendering proper medical care to petitioner and other employees at the sanitarium, refused to allow her to be operated on for the injury, stating that if she would wear an abdominal support an operation would not be necessary; that thereafter she followed this advice and wore such support; that as a result of the refusal of the defendant to allow petitioner to be operated on, her condition, due to said rupture, became worse, and in September, 1928, she was compelled, on account of the condition of her health, to resign her position; that in May, 1934, her condition was such that other physicians whom she consulted advised that an immediate operation was necessary for said rupture, and petitioner was then operated on, when for the first time she ascertained the true extent of the injury done her by the conduct of the defendant; and that shortly before said operation petitioner discovered that the defendant had neglected and mistreated her on account of ill feeling on the part of defendant toward petitioner's husband. Paragraph 51 of the petition is as follows: "Petitioner has no adequate remedy at law. The peculiar circumstances of the case make it necessary, as shown by the petition, that a court of equity assume jurisdiction of defendant's fraud, and in order that the statute of limitations may be decreed to not commence until plaintiff discovered defendant's malicious attitude towards her and until she discovered by the operation undergone on May 19, 1934, as to the full extent of her injuries and defendant's malpractice and unprofessional advice and actions." The concluding paragraph is as follows: "Petitioner waivesdiscovery, and comes into this equity court and prays as follows: A. That she have judgment against the defendant for $25,-000 for damages to her health. B. That she have...