Opinion
39612.
DECIDED SEPTEMBER 6, 1962. REHEARING DENIED OCTOBER 25, 1962.
Action for damages. Fulton Superior Court. Before Judge Whitman.
J. Connie Covington, Marvin O'Neal, Jr., for plaintiffs in error.
Bartholomew Almon, R. T. Bartholomew, Everett Almon, contra.
1. If a petition is sufficient to withstand a general demurrer and the proof supports the allegations, a motion by defendant for judgment non obstante veredicto will not lie.
2. There was no error in the overruling of the motion for new trial on the general grounds.
3. It is not error for the court in withdrawing from the consideration of the jury a count in the petition to identify it by stating contentions asserted in that count.
4. A ground of a motion for new trial that is neither urged nor argued in the brief will be treated as abandoned.
5. It is not error to charge the substance of ( Code §§ 84-906 and 84-924 in connection with an action against a hospital administrator who is alleged to have mixed and administered drugs for the relief of his discomfort to a patient at the hospital as a result of which the patient suffered a bromide poisoning.
DECIDED SEPTEMBER 6, 1962 — REHEARING DENIED OCTOBER 25, 1962.
Walter McDonald brought a suit for damages in Fulton Superior Court against Fulton Hospital, Inc. and its administrator, Thomas D. Hardy, alleging that he had suffered bromide poisoning caused by the administration of "dope, drugs, narcotics, bromides or other substance" to him by the manager while plaintiff was a patient in the hospital under treatment by doctors for pneumonia and pleurisy. The evidence disclosed that plaintiff had suffered an episode of alcoholism as well as one of pneumonia and pleurisy. Plaintiff alleges that on several occasions the administrator took him into his private office in the hospital, mixed some substances — sometimes green, sometimes brown — not prescribed by the physicians, and gave them to him to relieve his discomfort and that these caused his condition to worsen until his son finally removed him from the hospital and placed him at St. Joseph's Infirmary. He was allowed to remain there only one day because his condition was such that he was difficult to control. He was moved to the Peachtree Hospital and doctors who attended him there found him to be suffering from a severe siege of bromide poisoning. Two doctors who attended him testified that when admitted to Peachtree Hospital plaintiff had a delirium tremens which had resulted from taking bromides in excessive quantities. There was no demurrer to the petition. Defendants' motion for directed verdict was denied.
The jury returned a verdict for plaintiff against both defendants in an amount approximately equal to the hospital and medical expense incurred by plaintiff in recovering from the bromide poisoning at Peachtree Hospital. Thereafter motions for judgment non obstante veredicto and for new trial were overruled, and defendants except.
1, 2. It is insisted that although the petition was not demurred to, it was so defective as to set out no cause of action and that no legal verdict for the plaintiff could be returned on it. It must be conceded that if the petition was so defective, the motion for judgment non obstante veredicto ought to have been granted. Southern Bell Tel. Tel. Co. v. Brackin, 215 Ga. 225 (2) ( 109 S.E.2d 782); Code § 110-704.
The basis for this position as urged by the defendants is that the petition was equivocal in alleging that "dope, drugs, narcotics, bromides or other substance" was administered, that it did not allege what "other substance" may have been given him and did not allege when or how it was given. We can not agree that these defects render the petition so defective as to set out no cause of action. They are, of course, matters which might well have been reached by special demurrer. But to meet the test of Brackin it must appear that the petition would have been subject to a general demurrer, and to determine that we must look to the four corners of the petition, and to any amendment thereof that may have been effected by the evidence. See Harvey v. DeWeill, 102 Ga. App. 394, 404 ( 116 S.E.2d 747). It does allege that plaintiff suffered a bromide poisoning which resulted from the administration of whatever was given him, and that whatever it was, it was mixed and administered to him by the defendant Hardy while plaintiff was a patient in the Fulton Hospital. We think that, as against a general demurrer, this was enough of what, when and how. The evidence was sufficient to prove the allegations and to support the verdict. We may say that if we had been members of the jury we might have come to a different conclusion — but this court has no right to disturb the findings of a jury if there is any evidence to support them. The trial judge might have exercised a discretion in the grant of a new trial, but he did not. We have no such power. We find no error, therefore, in the overruling of the motion for judgment notwithstanding the verdict or in the overruling of the general grounds of the motion for new trial.
3. Error is assigned upon the portion of the court's charge in which he withdrew from the consideration of the jury count 1 of the petition upon the ground that in so doing the contentions of the plaintiff, as set out in count 1, were related by the court to the jury. A reading of the charge shows no error. It is apparent to the reader at once that the court was carefully identifying the count of the petition that was being withdrawn from their consideration and on which they were to return no verdict.
4. Although reference is made in the brief to special ground 2 of the motion for new trial, it is neither argued nor urged. Thus, it is treated as having been abandoned.
5. In special ground 3 error is assigned on the portion of the charge "defining negligence in relation to the duty of a physician or one who undertakes to perform the services of a physician, whether licensed or not," urging that the defendant Hardy, a hospital administrator, was not a licensed physician, that he never represented himself so to be, and that thus there was no such person described in either the pleadings or the evidence as was referred to in the charge. We think that the charge was authorized. It was not contended that Hardy was a physician, licensed or not, but rather that he was undertaking to perform the services of one when he mixed and administered the substances to plaintiff while a patient in the hospital for the purpose of affording him relief from discomfort. The charge gave the substance of Code §§ 84-906 and 84-924, which seem to us to have been applicable and appropriate under the facts here. Cf. Andrews v. Lofton, 80 Ga. App. 723 (2) ( 57 S.E.2d 338).
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.