Sims v. Callahan

• Decision Date: 21 May 1959
• Docket Number: 6 Div. 290
• Citation: 112 So.2d 776,269 Ala. 216
• Parties: J. H. SIMS v. Alston CALLAHAN.
• Court: Alabama Supreme Court

Page 776

112 So.2d 776

269 Ala. 216

J. H. SIMS v. Alston CALLAHAN.

6 Div. 290.

Supreme Court of Alabama.

May 21, 1959.

Whitmire, Morton & Coleman, Birmingham, for appellant.

Spain, Gillon & Young, Cabaniss & Johnston, Ralph B. Tate, Foster Etheridge and Leigh M. Clark, Birmingham, for appellee.

STAKELY, Justice.

This is an appeal by the plaintiff from the verdict and judgment rendered in the case of J. H. Sims, Plaintiff, v. Dr. Alston Callahan, Defendant. The case was submitted to the jury on Count A, which claims damages sustained by the plaintiff as the result of fraud and deceit of the defendant. The defendant pleaded in short by consent the general issue as to Count A. At the conclusion of the trial there was a verdict in favor of the defendant and thereupon the judgment was rendered by the court for the defendant and against the plaintiff. There was a motion for a new trial, which was overruled by the court. This appeal followed.

In Count A, upon which the case was tried and submitted to the jury, the plaintiff avers in substance the following: On July 25, 1955, while the relationship of patient and physician existed between the plaintiff and the defendant, a specialist engaged in the treatment, care and surgery of the eye, 'defendant did willfully and falsely represent to plaintiff, with the intent to injure plaintiff, that plaintiff should undergo immediate surgery to remove cataracts and other growth from his eyes, else run the risk of blindness or great loss of vision, which said representation was false, and the falsity of said representation was unknown to the plaintiff; that said representation was made by defendant to induce plaintiff to undergo said surgery as a patient of defendant in order that defendant might collect from plaintiff a fee for performing said surgery and the plaintiff in reliance upon said representation, and believing the same to be true, but which was untrue, and known by defendant to be untrue, consented and agreed to allow defendant to perform surgery on plaintiff's eyes to remove said cataracts and other growth from his eyes. * * *

'* * * And plaintiff in reliance upon said representation of defendant and believing the same to be true did, * * * enter the Jefferson-Hillman Hospital, in the City of Birmingham, Jefferson County, Alabama, on, to-wit, July 30, 1955, and became a patient therein of defendant for the purpose of having defendant perform said surgery upon plaintiff's eyes; that plaintiff, after entering said hospital on, to-wit, said date, and while being made ready to undergo said surgery, by the nurses and other personnel, of said hospital, learned that said representation of the defendant was false. That the plaintiff upon learning that said representation of the defendant was false left said hospital before defendant performed said surgery and returned to his home.

'And plaintiff avers that said representation of defendant was false, in that plaintiff did not need to undergo said surgery or run the risk of blindness or great loss of vision; that to the contrary had plaintiff undergone said surgery he would have sustained substantial loss of vision all to his great loss and damage.

'And the plaintiff avers that he in reliance upon said representation of defendant and believing the same to be true, but which was untrue * * *,' sustained the injuries and damages set forth in his complaint.

This appeal presents three principal questions:

The first is the admission in evidence, over the objection of counsel for plaintiff of testimonials in behalf of defendant by a series of witnesses called to the witness stand by defendant, who claimed to have been former patients of defendant, upon whom, so the witnesses were allowed to testify, the defendant had performed cataract surgery with results most satisfactory to said witnesses.

The second is the ruling of the trial court in sustaining the objection of counsel for defendant to the introduction in evidence of a certified copy of the record of the United States of America, Plaintiff, v. Alston Callahan, Defendant. In that record the defendant Dr. Alston Callahan pleaded guilty to the criminal act denounced by U. S. C. A., Title 18, Section 1461, of depositing for mailing and delivery by the post office department of the United States a package containing obscene, lewd, lascivious, and filthy pictures or color film, a further description of which, so the information alleges, is too obscene, lewd, lascivious, and filthy to be spread upon the records of the court.

The third is the action of the trial court in giving and reading to the jury a series of charges, requested in writing by defendant, in which the jury was instructed, in substance, that if Dr. Callahan 'honestly' stated to plaintiff the condition of plaintiff's eyes, as Dr. Callahan 'believed' the same to exist, the plaintiff cannot recover, and in charging the jury in other charges requested by defendant that the jury could not return a verdict for plaintiff, unless the jury was reasonably satisfied from the evidence that Dr. Callahan 'knew' that his representations to plaintiff were 'false,' and that the representations were made to plaintiff with the 'deliberate' intent to 'deceive' plaintiff.

The appeal also presents for review other rulings of the court below in the admission and rejection of other evidence and the order of the trial court sustaining the demurrer of defendant to Count Two and Count B of plaintiff's complaint.

Tendencies of the evidence showed in substance the following: The plaintiff, a retired workman, who on the date of the trial of this case was seventy-eight years old, became a patient of defendant, Dr. Alston Callahan, an eye specialist, in August, 1948. Plaintiff had previously read articles in the paper about defendant and knew that he was on the faculty and board of the hospital. On the occasion when plaintiff was first attended by Dr. Callahan, the doctor examined plaintiff's eyes and tested them to see how well plaintiff could see. On that occasion Dr. Callahan did not prescribe any change in the glasses plaintiff was then wearing. At that time plaintiff told defendant that a doctor had previously informed him that he had cataracts. On this the first visit of plaintiff to defendant's office, Dr. Callahan examined plaintiff's eyes thoroughly. In the course of the examination defendant told plaintiff that he couldn't improve on plaintiff's glasses. Defendant was very nice to plaintiff and said to him, 'See you again in about sixty days.'

About sixty days thereafter the plaintiff went again to the defendant's office. On that occasion the defendant again examined the plaintiff's eyes. He put a light on the chart and asked plaintiff to read the various lines. Defendant also handed plaintiff a little booklet and asked him to read it. On this occasion the plaintiff was attended by defendant, but defendant did not prescribe any change in plaintiff's glasses. He stated to plaintiff that he 'couldn't better' plaintiff's glasses.

In March, 1949, plaintiff was again attended by the defendant who, upon completion of the examination, did not prescribe any change in plaintiff's glasses, but asked the plaintiff to return again for further examination at a stated time. Plaintiff did not return to defendant's office at the time suggested by defendant. Some time later plaintiff broke one of the lenses in his glasses and made an appointment with defendant and went to his office and defendant gave him a prescription with which to replace the broken lens.

Plaintiff had the prescription for the broken lens filled as directed by defendant. Plaintiff did not find that lens to be as satisfactory as the broken lens. Consequently he carried the broken lens to an optical company and had a lens like the broken one ground, with which he replaced the one prescribed by defendant.

Plaintiff did not see Dr. Callahan again until July 25, 1955. Immediately prior to July 25, 1955, the plaintiff called defendant's office by telephone and made an appointment. On that occasion he inquired as to the amount of defendant's fee for an eye examination and was advised that the fee was $15. Previously his fee had been $10. On July 25, 1955, plaintiff went to defendant's office to keep the appointment. Shortly after he arrived he was directed by someone in the defendant's office other than Dr. Callahan into an examining room where his eyes were examined by a lady instead of Dr. Callahan. When Dr. Callaham came into the examining room plaintiff said to Dr. Callahan that he wanted him to examine his eyes. Dr. Callahan did not examine the plaintiff's eyes. He did not, as he had done on previous occasions, ask plaintiff to read letters on a chart or to read from the 'little booklet.' The plaintiff described what took place between Dr. Callahan and himself on that occasion and in brief the plaintiff claims that he said to Dr. Callahan, 'I see too well for an operation,' to which Dr. Callahan replied, 'No, you can't see at all,' and 'he told me if I didn't have an operation at once I would be blind.'

In this conference the plaintiff agreed to go to the hospital and undergo the surgery suggested.

Whe plaintiff agreed to go to the hospital Dr. Callahan asked if July 30, 1955, was agreeable to the plaintiff. The date being agreeable to plaintiff, it was agreed that on that date the plaintiff would enter the hospital. Thereupon arrangements were made for the plaintiff to enter the hospital on that date. At the time the plaintiff agreed to undergo cataract surgery Dr. Callahan told him to employ other physicians to ascertain his general condition, to see if he could withstand or undergo the surgery. Pursuant to these plans, the plaintiff entered the hospital on July 30, 1955.

When the defendant advised the plaintiff that he should undergo cataract surgery Dr. Callahan did not explain to the plaintiff the nature of cataract surgery, nor did he explain to plaint...