Gunthorpe v. Daniels

• Court: Georgia Court of Appeals
• Writing for the Court: CARLEY; BANKE, Acting P. J., and UNDERWOOD
• Citation: Gunthorpe v. Daniels, 257 S.E.2d 199, 150 Ga.App. 113 (Ga. App. 1979)
• Decision Date: 29 May 1979
• Docket Number: No. 57531,57531
• Parties: GUNTHORPE et al. v. DANIELS.

Page 199

257 S.E.2d 199

150 Ga.App. 113

GUNTHORPE et al. v. DANIELS.

No. 57531.

Court of Appeals of Georgia.

Argued April 9, 1979.

Decided May 8, 1979.

Rehearing Denied May 29, 1979.

William L. Skinner, Decatur, for appellants.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, John H. Stanford, Jr., Rosa Beatty Lord, Atlanta, for appellee.

CARLEY, Judge.

Interlocutory appeal was granted pursuant to Code Ann. § 6-701(a)2 to review a pre-trial order prohibiting the plaintiff in this malpractice suit from introducing any evidence as to orthodontic treatment rendered by the defendant to patients other than herself. It is urged on appeal that this order is so broad as to exclude evidence otherwise admissible as an exception to the "other transactions" rule. We agree and reverse.

1. Since the "duties and responsibilities of a dentist to his patient are controlled by the same rules of law as control the duties and responsibilities of a physician and surgeon," the malpractice issue involved here must be decided pursuant to Code Ann. § 84-924. Wilson v. Kornegay, 108 Ga.App. 318, 320(1), 132 S.E.2d 791 (1963). In such actions, "the presumption is that the medical or surgical services were performed in an ordinarily skilful manner, and the burden is on the one receiving the services to show a want of due care, skill and diligence. (Cits.) And in such a case the proof ordinarily required to overcome such presumption of care, skill and diligence is that given by physicians or surgeons as expert witnesses. (Cits.)" Shea v. Phillips, 213 Ga. 269, 271(2), 98 S.E.2d 552, 554 (1957).

As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible. Code Ann. § 38-202; Bazemore v. Powell, 54 Ga.App. 444, 445, 188 S.E. 282 (1936); Williams v. Slusser, 104 Ga.App. 412, 414(5), 121 S.E.2d 796 (1961). However, "(i)f proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the testimony falls within an exception such as to show knowledge of a defect (City of Dublin v. Howell, 68 Ga.App. 463, 23 S.E.2d 177), or causation (Gilmer v. City of Atlanta, 77 Ga. 688, 690) or to rebut a contention that it was impossible for the accident to happen in the manner claimed (Hogg v. First Nat. Bank, 82 Ga.App. 861(6), 62 S.E.2d 634)." Flowers v. Slash Pine Elec. etc. Corp., 122 Ga.App. 254, 255(3), 176 S.E.2d 542, 544 (1970). Independent testimony of other transactions has also been admitted to show the prior existence of a dangerous condition (Wright v. Dilbeck, 122 Ga.App. 214, 216(4), 176 S.E.2d 715 (1970)) or hazardous situation (Medi-Clean Services v. Hill, 144 Ga.App. 389, 393(4)(5), 241 S.E.2d 290 (1977)).

We do not intend to indicate that the decisions cited are inclusive of all exceptions to the "other transactions" rule and, since this case has not been tried, we do not have before us the specific evidence of what "other transactions" the plaintiff may wish to offer. We do hold that insofar as the order appealed from would prohibit the introduction of properly offered evidence of "other transactions" which would otherwise be admissible as an exception to the rule, it was erroneous. We leave to the parties the trial of this case and to the trial judge the determination of whether the proffered evidence comes within any exception to the "other transactions" rule.

2. Moreover, since this is a malpractice case, should Dr. Daniels, on direct examination, testify, "as the defendant in a malpractice case did in Richards v. Harpe, 42 Ga.App. 123(1), 155 S.E. 85, that he had never had similar difficulty before or since, the statement is subject to contradiction by cross examination concerning similar cases in which similar treatment was followed by similar unfortunate results." Johnson v. Myers, 118 Ga.App. 773, 775(1), 165 S.E.2d 739, 742 (1968). Therefore, insofar as the order appealed from would prohibit, if such event occurs, the cross examination of Dr. Daniels, it is also erroneous.

3. The existence of a claim for punitive damages is an added factor. To authorize recovery of additional damages under Code Ann. § 105-2002 "there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." Southern R. Co. v. O'Bryan, 119 Ga. 147(1), 45 S.E. 1000 (1903); Gunter v. Logue, 138 Ga.App. 868, 869(3), 227 S.E.2d 773 (1976). On this issue, pleadings and evidence to the effect that the defendant knew from previous experience that the alleged negligence on his part would probably result in injury to the plaintiff, because he knew that such carelessness on his part in the past had resulted in similar injuries to others but continued in this course of conduct in utter indifference to the consequences, are admissible on the question of malice or wanton misconduct, but not on the question of whether the act itself was negligent. Flint Explosive Co. v. Edwards, 84 Ga.App. 376, 390(3), 66 S.E.2d 368 (1951); see also Hulsey v. Sears, Roebuck & Co., 138 Ga.App. 523, 526(3), 226 S.E.2d 791 (1976).

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