Edmondson v. Hancock, (No. 19914.)

• Decision Date: 12 November 1929
• Docket Number: (No. 19914.)
• Citation: 151 S.E. 114,40 Ga.App. 587
• Parties: EDMONDSON. v. HANCOCK.
• Court: Georgia Court of Appeals

40 Ga.App. 587

151 S.E. 114

EDMONDSON.

v.HANCOCK.

(No. 19914.)

Court of Appeals of Georgia,

Division No. 1.

Nov. 12, 1929.

Rehearing Denied Dec. 10, 1929.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Action by John Edmondson against Thomas H. Hancock. Judgment for defendant, and tiff brings error. Affirmed.

In the superior court of Fulton county John Edmondson filed a petition against Thomas H. Hancock, which alleged in part, as follows: That Thomas H. Hancock is a resident of Fulton county, a practicing physician, and is indebted to petitioner in the sum of $10,000, by reason of the following facts: That on the 8th day of May, 1926, petitioner was injured by the Southern Railway Company, in that his right leg was broken in two places and said leg was severely lacerated from near the thigh bone straight down to the knee, said laceration leaving an open place all the way down his right leg above the knee, said wound being nearly to the bone in depth and about two inches wide; that in this condition he was carried to the hospital, and the defendant was called for the purpose of setting said leg and sewing up and treating said wound; that the defendant attended him from the 8th day of May, 1926. to the 3d day of November following, calling upon him almost daily; that defendant did not properly cleanse the wound and did not remove therefrom pieces of wood and coal which were left in the wound, but that he sewed up these pieces of wood and coal in the wound. Petitioner alleges that the defendant did not properly set said broken bones, and did not place them so that they would knit together and heal; that the method employed by defendant in setting said bones and in treating said wound "constitutes malpractice on the part of the defendant, in that defendant carelessly and negligently failed to properly sew up said wound and to set said bones in accordance with the manner used in modern surgery; that as a result of said improper conduct by defendant towards your petitioner he is left lame and without the use of one leg, in which condition he will have to remain during the remainder of his life."

The defendant filed an answer, which was afterwards amended, denying liability. He denied that he was negligent in any way in setting the bones in the plaintiff's leg or in the treatment of the injuries received by the plaintiff, and alleged that, "on the contrary, this defendant says that he brought to the exercise of his profession in treating said injuries, that degree of care, skill, and diligence required by law and by the practice of surgery, and did everything in a careful, cautious, and prudent manner in treating the plaintiff's injuries"; that when the plaintiff received the injuries as a result of the rail road accident this defendant was requested by the Southern Railway Company to treat the plaintiff for said injuries; that he did this with remarkable results; that in July, 1926, the plaintiff brought suit against the Southern Railway Company and selected another doctor, after which time defendant had nothing further to do with the treatment of plaintiff's wounds. Defendant further shows that the allegations in reference to plaintiff's injuries, the suffering therefrom, and the result of the injuries, were the same as alleged in plaintiff's suit against the Southern Railway Company. "All of said injuries, plaintiff alleged, were caused by Southern Railway Company; his said suit against the said Southern Railway Company having been filed after this defendant ceased to treat said injuries."

Defendant further alleged: That on the 7th day of May, 1927, the suit of John Edmondson against the Southern Railway Company was settled, and the following order entered on the records of Fulton superior court, to wit: "The within case having been settled between the parties, it is ordered by [the] court that plaintiff recover from defendant $——cost for use of officers of the court." That on the 4th day of May, 1927, the said John Edmondson, in consideration of the sum of $7,000 paid by the Southern Railway Company to him, did execute and deliver to the Southern Railway Company a release as follows: "Know all men by these presents that, for and in consideration of the agreement of the Southern Railway Company to pay to the above named payee the sum of seven thousand and no/100 dollars, I, the undersigned John Edmondson, do hereby release and forever discharge the said Southern Railway Company, the Company from all claims, demands, actions, rights of action, now or hereafter existing, either at law or in equity, including all claims on account of his or her personal representative for the pecuniary loss sustained by his or her relatives entitled thereto by reason of his or her death, and from any judgment that may have been rendered, and from liability for payment of any further sum or sums of money or for render of other satisfaction, for and because of, or growing out of, the following mentioned matter and claim, viz., for injuries received by me at or near Inman Yards, Georgia, on or about the 8th day of May, 1926, and all results attending or following said injuries. Also in full settlement, compromise, and satisfaction suit John Edmondson v. Southern Railway Company and W. O. Alexander, suit for $50,000.00, pending superior court, Fulton County, Georgia." That by reason of said release the Southern Railway Company was relieved of all liability of every character for or because of or growing out of the injuries to Edmondson at or near Inman Yards on or about May 8th, 1926. That "this defendant in treating said inju-ries was an employee and agent of the Southern Railway Company." That for his services to plaintiff he was paid by the Southern Railway Company, and that he made no charge against the plaintiff for such services. "This defendant further alleges and charges and pleads said settlement of said judgment by John Edmondson against the Southern Railway Company, and by virtue of said release, and by reason of the relation of this defendant to the Southern Railway Company as aforesaid, John Edmondson's right of action on account of said injury has been fully satisfied, and his present suit against this defendant in this case should be and is barred thereby."

Plaintiff demurred to the amendment and plea in bar, the demurrer was overruled, and the plea in bar sustained, in an order which is as follows: "This case came on for trial on the 8th day of February, 1929, at which time the defendant tendered an amendment to his plea or answer, and pleaded a release given by John Edmondson to the Southern Railway Company and the settlement of the suit of John Edmondson versus Southern Railway Company, No. 69326, Fulton superior court, in bar to the case of John Edmondson versus Dr. Thos. H. Hancock. This amendment was by this court allowed and ordered filed as a part of the record in said case on the 8th day of February, 1929. The defendant offered in evidence in support of said plea in bar the original release set out in said plea, together with the petition and order of settlement in the case of John Edmondson versus Southern Railway Company as set out in said plea in bar, and the testimony by...