Stokes v. Wright
| Decision Date | 18 June 1917 |
| Docket Number | 8564. |
| Parties | STOKES v. WRIGHT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
When a transaction partakes of the nature both of a tort and a contract, the party complaining may waive the one and rely solely upon the other. Civ. Code 1910, § 4407.
When a person has two or more conflicting and inconsistent remedies for the same wrong, his election and actual prosecution of the one to a favorable or an adverse decision is a bar to the others.
In the case of conflicting and inconsistent remedies, the remedies are not concurrent, and where a choice between them is once made, with knowledge of all the facts, the right to follow the other is forever gone.
Owing to the nature of the relation between a physician and a patient, the latter, in the case of malpractice by the former, ordinarily has a choice of remedies, and may sue the physician either in contract or in tort. If he elects to sue in tort, and actually commences and prosecutes his action to a final adverse decision, his right to sue as for a breach of the contract, or a breach of the duty imposed by law, by reason of the defendant's calling and the relation between the parties, is lost. And this is true although at the time of the commencement of the action for the tort it was barred by the statute of limitation. The election to sue in tort, and the prosecution of such suit to final judgment relates back to the original transaction out of which the action arose, and constitutes an irrevocable election of remedies as they then existed on the part of the patient.
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Action between J. L. Stokes and T. R. Wright. There was a judgment for the latter, and the former brings error. Affirmed.
D. T Roughton and A. R. Williamson, both of Augusta, for plaintiff in error.
Callaway & Howard, of Augusta, for defendant in error.
This is the second suit brought by the plaintiff against the defendant, a practicing physician and surgeon, to recover damages for alleged negligence in an operation performed by defendant on plaintiff. The first suit was filed to the January term, 1916, of the superior court of Richmond county and was an action in tort, claiming damages for the alleged negligence of the physician in performing an operation upon the plaintiff on November 25, 1913. By demurrer the defendant raised the question of the statute of limitations, and the plaintiff's right to recover was challenged on the ground that the petition set forth no cause of action. Upon the hearing of this demurrer, on June 5, 1916, the court passed the following order: "Demurrer sustained and petition dismissed." There was no exception to this ruling, but instead thereof the plaintiff filed the present suit to the September term, 1916, alleging the same facts as his cause of action, but claiming damages for the breach of the implied contract between plaintiff and defendant, which resulted from the alleged negligent operation. By amendment the plaintiff attached to his present suit a copy of the former suit, the defendant's demurrer thereto, and the court's decision thereon. The defendant filed his demurrer to the petition as amended, and for cause of demurrer set out that the decision on the demurrer in the former case was res adjudicata as to the plaintiff's cause of action; that the plaintiff, having elected in the first action to sue on the alleged tort, is now bound by that election, and, his cause of action therefor being barred, he cannot now prosecute his action for the alleged...
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