Jeter v. Davis

• Decision Date: 17 April 1925
• Docket Number: (No. 15898.)
• Citation: 127 S.E. 898,33 Ga.App. 733
• Parties: JETER. v. DAVIS et al.
• Court: Georgia Court of Appeals

33 Ga.App. 733

127 S.E. 898

JETER.

v.DAVIS et al.

(No. 15898.)

Court of Appeals of Georgia,

Division No. 2.

April 17, 1925.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by Mrs. F. D. Jeter against Dr. E. C. Davis and another. Judgment for defendants, and plaintiff brings error. Reversed.

J. V. Poole, of Atlanta, for plaintiff in error.

Underwood, Pomeroy & Haas, of Atlanta, for defendants in error.

BELL, J. Mrs. F. D. Jeter brought a suit against Dr. E. C. Davis and Davis-Fischer Sanitarium Company. The sustaining of a general demurrer filed by the company was affirmed by this court in Jeter v. Davis-Fischer Sanitarium Co., 28 Ga. App. 708, 113 S. E. 29. To the statement of the allegations of the petition there set forth, the following may be added as relevant to the case as charged against the doctor:

"Petitioner shows that her said husband went down to the office of the sanitarium to call up his home at Douglasville, and before he came back into the operating room the said doctors and nurses took petitioner and placed her on the operating table, telling her the taking of the blood from her arm would not amount to more than a pin scratch, and that the blood would be taken with a needle, and she would scarcely know it; that she told the said doctors and nurses not to cut her arm, and they told petitioner they would not cut her arm, and would only puncture the skin in order to get at the vein, and that it would take only a very few minutes, and she could go home in 20 or 30 minutes.

"Petitioner shows that the incision in her arm was made without her knowledge and consent, and contrary to her express direction and re-quest and over her objections; that she did not consent to have her arm cut and would not have consented to the same; that she was told by the said doctors and nurses that they would not cut her arm, and was told by them while they were actually in the act of cutting that they were not cutting her arm, but that the pain was caused by the injection of the needle; that, when she complained of the pain, the doctors and nurses told her it was only the needle and would not amount to anything.

"Petitioner shows that she told the said doctors and nurses that she could not bear to see blood, and that she was placed on the operating table in a position where she could not see the blood, and could not see her arm; neither could she see what the doctors and nurses were doing, and had to take their word as to what they were doing, and did not know they had cut her arm until they were sewing it up.

"Petitioner shows that the said sanitarium, through and by its agents and employees, and the said Dr. E. C. Davis, mistreated, maltreated, and unlawfully abused, injured, and damaged petitioner by the acts and deeds heretofore set out, and as hereafter set forth: (a) That they willfully committed a tort on petitioner by cutting her arm over her objections and without her knowledge and consent; (b) that they perpetrated a fraud and a tort on petitioner, and caused her to allow them to put her on the operating table for the purpose of having her blood taken, by assuring her the operation would not amount to anything, and would not hurt her, and, after getting her in their control on the operating table, then cutting her arm without her knowledge and consent; (d) that they deceived petitioner by telling her they would not cut her arm, and by telling her the operation would not amount to anything harmful."

Upon the trial of the case against Dr. Davis, the verdict was in favor of the defendant. The plaintiff made a motion for a new trial, which was overruled, and she excepted.

1. In one of the special grounds of the motion for a new trial complaint is made of the following charge of the court:

"Of course, you will understand, if Dr. Davis did this thing properly, and if he had their consent in doing of it, and if this lady left the hospital in that condition and the wound afterwards became infected from some other reason or cause than what he had done, he would not be liable for anything that occurred in consequence."

It is assigned that this charge was error, for the reason that there is no proper way to commit a willful and wrongful trespass on the person of another, and because it "confused the skill of the doctor and the right to cut plaintiff's arm to such an extent that the jury was unable to intelligently understand the said charge, and was prejudicial to the plaintiff." It is further alleged that the charge was error because there was no contention or evidence that the plaintiffs arm became infected from any other cause than the defendant's act in cutting it.

As will be observed, the plaintiff contended that, although she consented to a transfusion of her blood to one of the defendant's patients, she did so only upon the condition that the blood should be extracted from her by a needle, and in no other way, and that the defendant, in violation of the terms of the consent given, cut her arm with a knife, for the purpose of obtaining the blood, and thus wrongfully inflicted a serious injury. There was evidence on behalf of the plaintiff which, if believed by the jury, would have established the allegations of her complaint. On the other hand, the defendant testified, and introduced witnesses who also testified, to the effect that the plaintiff offered herself unconditionally for the purpose of the operation, and contended, therefore, that in cutting her arm he was acting with the plaintiff's consent, either express or implied. The testimony on behalf of the defendant further tended to show that the operation was performed properly, and that all proper diligence was exercised to prevent infection. While the defendant filed only a general denial to the allegations of the petition, his evidence, to which we have just alluded, was introduced without objection. In these circumstances the jury could consider the evidence and the court was authorized to charge upon it. Napier v. Strong, 19 Ga. App. 401 (2), 91 S. E. 579. The excerpt from the charge of the court, set out above, was not adjusted to the contentions of the plaintiff, but this is no reason for holding that the charge was error, provided it was adapted to the contentions and evidence of the defendant. Edwards v. Oapps, 122 Ga. 827 (3), 50 S. E. 943; James v. Hamil, 140 Ga. 168 (3), 78 S. E. 721.

The defendant would uphold the charge on the idea that the suit, properly construed, is one for negligence. In this position we cannot concur, in view of the allegations of the complaint. The plaintiff says her action is nothing more nor less than an action for assault and battery. While it is unnecessary to determine whether this contention is correct or not, it would seem to the writer that the defendant was not guilty of a trespass upon the plaintiff's person, where her consent was given to the drawing of the blood in some way. According to her contentions, he merely exceeded his authority.

Where a person having license from the law to do an act abuses or exceeds his authority, he becomes a trespasser ab initio. But when the complaining party himself grants a license which he might have granted or not, at his option, the remedy for an abuse is not broader than the abuse itself. The licensee is not rendered a trespasser from the beginning, but is liable on the special case for any violation of the terms of the license. Sheftall v. Zipperer, 133 Ga. 488 (2), 66 S. E. 253, 27 L. R. A. (N. S.) 442; Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 (6), 72 S. E. 51.

But, whether the plaintiff's counsel has correctly classified the suit or not, it was not an action for negligence. And yet, since there was evidence tending to sustain the defendant's contention that the defendant and his assistants performed the operation with due skill, and also that they had the plaintiff's consent in doing it, the first assignment upon the charge is clearly without merit. Was there any evidence to authorize the inference that the wound became infected from some other reason or cause after the plaintiff left the hospital? If the plaintiff's contentions are true, the wrong committed upon her was a positive tort, even though it may not be considered as a trespass upon the person, and she was not bound to do anything to lessen the damages. Civil Code 1910, § 4398; Athens Manufacturing Co. v. Rucker, 80 Ga. 291 (4), 4 S. E. 885; Holbrook v. Town of Norcross, 121 Ga. 319 (2), 48 S. E. 922. But, if by affirmative action on her part she exposed it to infection, and it be made to appear that this and not the wound was the cause of a part of the injury and suffering for which she sued, the defendant to that extent would not be responsible. He would not be relieved of responsibility, however, merely because of the plaintiff's inaction or failure to lessen the damage by ordinary care. Compare Clements v. State, 141 Ga. 666, 81 S. E. 1117.

As already stated, the defendant offered evidence to show that the wound was properly made and properly cared for during the time that the plaintiff was in his charge. This would be some evidence that the infection was from some independent cause. A physician who treated her at her home for some time after the operation testified:

"As to what caused her arm to be infected, I don't know. She was very imprudent. She unwrapped her arm, took the dressing off, and showed it to neighbors several times. I know that to be a fact. She showed it to my wife, and put the dressing back on, and showed it to Mr. Harvey, and I think part of her condition was secondary infection, infected again. It was not infected the first time I saw it. It was swollen, but that is not necessarily a sign of infection; you may have that without infection. Her arm was bound tight when I first saw it, and I released the tension, not because it was infected, but it was pretty tight, and I simply wanted to give it a little relief. That would not cause it to...