Wood v. Anderson

• Decision Date: 06 July 1939
• Docket Number: 27387.
• Citation: Wood v. Anderson, 60 Ga.App. 262, 3 S.E.2d 788 (Ga. App. 1939)
• Parties: WOOD v. ANDERSON.
• Court: Georgia Court of Appeals

3 S.E.2d 788

60 Ga.App. 262

WOOD v. ANDERSON.

No. 27387.

Court of Appeals of Georgia, Division No. 2.

July 6, 1939

R L. Wood, in pro. per.

No appearance for defendant in error.

STEPHENS Presiding Judge.

Mrs. R L. Wood instituted suit in the superior court of Evans County against P. M. Anderson, to recover damages alleged to have been sustained by her as the result of alleged negligence of the defendant in failing, as an attorney at law employed by her, to properly prosecute in the courts a claim for damages which she had against a named dentist for alleged negligence in the performance of his professional duties in his treatment of the plaintiff's teeth, gums etc. The plaintiff alleged in her petition that the defendant agreed with her, for a fee of $25 in cash and one fourth of the recovery, to prosecute, as her attorney at law, her claim against the dentist; that afterwards, on August 15, 1933, the plaintiff left with the defendant's wife $25 to be paid to the defendant pursuant to the agreement, that the defendant received the $25, and acknowledged receipt thereof in a letter written to the plaintiff on August 18, 1933; that the defendant prolonged the trial of the plaintiff's case; that on account of sickness the plaintiff could not attend court, and so advised the defendant by mail; that the defendant did not appear at court to "protect the case and it was thrown out"; that the defendant "gave up the case," but the plaintiff desired that the case be tried; that the defendant agreed to obtain a reinstatement of the case; and that the defendant by his alleged conduct caused the plaintiff to lose her suit, to her damage in the sum of $25,000. By an amendment to her petition the plaintiff alleged that the injuries, to recover damages for which she had employed the defendant as her attorney to prosecute the suit, were inflicted on her by the dentist, August 17, 1931. She alleged in detail the treatment which she received from the dentist, and the effect which such treatment had upon her.

The defendant in his plea alleged that the plaintiff consulted him about bringing suit against the dentist; that she stated to the defendant that her case was about "out of date," and that she wanted suit brought before her claim became barred, that he tried to dissuade her from bringing the suit, as he did not believe she could recover, and so advised her, but at her persistence he informed her that he would bring the suit for $25, in order to prevent the suit from becoming barred, and that if she would produce evidence of physicians and dentists which would establish her contention he would try the case for fifty per cent of the recovery, but unless she could obtain such evidence he would not try the case, that afterwards the plaintiff came to the defendant's home, in his absence, and left $25 which was to pay for the bringing of the action, that this was within a day or two of the cause of action becoming barred, that he did not have time enough before the case became barred to get in communication with the plaintiff, that he entered the suit "the same day or the day before it would have been barred," that he advised the plaintiff of what he had done, and called her attention to what he had previously told her, to the effect that she would have to obtain evidence of the nature of which he had already informed her; that she failed to furnish such evidence, and the defendant informed her that it would be useless to try the case and he did not intend doing so, that the case was afterward dismissed as alleged; that the plaintiff insisted that the defendant obtain a reinstatement of the case which the defendant did, but with the understanding with her that he would be under no obligation to try the case, and that the plaintiff should obtain another attorney to try it; and that the defendant fully complied with his obligation to the plaintiff by filing the petition so that the suit would not become barred and the plaintiff would have time to obtain evidence if she could, but which she wholly failed to do.

The plaintiff, in her testimony on the trial, after narrating at great length the treatment which she had received by the dentist against whom she claimed damages, testified that when she called to see the defendant about her case she could not get any satisfaction out of him, except that he stated that the dentist had sent him word not to file the suit; that after the case was thrown out of court the first time, she requested the defendant to reinstate the case, that she could not appear at court when the case was due for trial because of sickness at home; that she advised the defendant of her inability to attend court; that the defendant later agreed to reinstate the case and try it if the plaintiff would get certificates from doctors as evidence; and that the defendant told her that the case had been dismissed because of "our not being there" at court. The plaintiff introduced in evidence the letter to her from the defendant, dated August 18, 1933, in which he stated that on his return home his wife gave him the money which the plaintiff had left for him, that he prepared and filed the suit on the 17th; that this was as early as he could have got the suit filed, as he was out of town and did not get back until 2 o'clock in the morning of the 16th; that the case was filed "in plenty of time," that he could have waited several days longer, "as it was probably some days after the work was done before you [the plaintiff] realized and knew that you had been damaged as you claim;" and that he would keep the plaintiff advised as to the developments in the case.

The defendant testified that about the time alleged in the petition the plaintiff came to him, and it appeared to him that the claim was about barred by the statute of limitations, that he endeavored to dissuade her from bringing the suit, as he did not believe she could recover, and so advised her; that he informed her that he would file the suit for $25, in order to prevent the case from being barred, and that if she would procure evidence of physicians and dentists to prove her contentions, he would try the case for fifty per cent of the recovery, but unless she obtained such evidence he could not go on with the case, that when he came home on the morning...