Mckleroy v. Sewell

• Decision Date: 30 September 1884
• Citation: 73 Ga. 657
• Court: Georgia Supreme Court
• Parties: McKleroy. vs. Sewell.

73 Ga. 657

McKleroy. vs. Sewell.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Physicians. Pleadings. Set-off. Recoupment. Torts. Contracts. Waiver. Evidence Witness. Before Judge Pottle. Madison Superior Court. March Term, 1884.

Sewell brought complaint against McKleroy on an account for services rendered as physician and for medicine furnished. Defendant filed, among other pleas, one tothe effect that, on August 15, 1880, the plaintiff went to his (defendant\'s) house in a state of intoxication, and administered medicine which caused him to vomit so vio lently that he was seriously injured, and had been able to do but little work since; and that, by reason of this malpractice, defendant was damaged $200.00.

Plaintiff made out a prima facie case. Defendant testified that plaintiff went to his house several times in a state of intoxication; that at one time he administered to defendant four cups of ipecac; but that he had frequently sent for him since as his family physician, to attend on himself, his wife and son.

Plaintiff recovered a verdict. Defendant moved for a new trial, on the following among other grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court struck the plea of set-off stated above, and refused to allow it to be amended by alleging the insolvency of the plaintiff.

(3.) Because, after allowing the defendant to testify to all of the facts as to the drunkenness and administering of ipecac by plaintiff, the court refused to allow him and another witness to give their opinions as to the unskilfulness of the practice, holding that unskilfulness by physicians could be proved only by physicians.

(4.) Because the court charged as follows: " If a man sends for a doctor, and the doctor treats the patient while he (the doctor) is intoxicated, and the patient afterwards calls in said doctor and continues to employ him, it would be a waiver of all objection to the doctor on account of his habit of intoxication."

The motion was overruled, and defendant excepted.

Pope Barrow; George D. Thomas; R. H. Kinnebrew, for plaintiff in error.

No appearance for defendant.

Jackson, Chief Justice.

On a careful examination of the transcript of the record in this case, we can see no error which demands a new trial. The case is suit on a physician's account for services, with medicine, rendered de3fendant for himself and family for a series of years. The account was admitted to be correctly transcribed from the doctor's books of original entry, and the services were proved by himself.

1.Complaint is made that set-off for tort in giving defendant too large a dose of medicine, which injured him to the amount of two hundred dollars, was not...