Sweat v. Foster
| Decision Date | 08 March 1922 |
| Docket Number | 13120. |
| Citation | 111 S.E. 66,28 Ga.App. 360 |
| Parties | SWEAT v. FOSTER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in striking paragraph 11 of the petition, or in dismissing the amended petition, on general demurrer.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by C. Sweat against K. E. Foster. Judgment for defendant on demurrer, and plaintiff brings error. Affirmed.
C. L. Kemper, of Atlanta, for plaintiff in error.
Bryan & Middlebrooks and Chauncey Middlebrooks, all of Atlanta, for defendant in error.
BROYLES, C.J. (after stating the facts as above).
It is well settled that in a suit for damages alleged to have been caused by the malpractice of a physician, the burden is on the plaintiff to show a want of due care, skill, or diligence, and also that the injury resulted from the want of such care, skill, or diligence. Georgia Northern Railway Co. v. Ingram, 114 Ga. 639, 40 S.E. 708, and authorities cited. Conceding, but not deciding, that the petition in the instant case established a want of due care, skill, or diligence, on the part of the defendant, it did not show that this negligence of the defendant was the cause of the death of the plaintiff's wife; paragraph 11 of the petition having been properly stricken on the special demurrer interposed. The court did not, therefore, err in dismissing the suit on general demurrer. In view of this ruling, it is unnecessary to decide whether the first suit was void or merely voidable.
Judgment affirmed.
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