Smith v. Taratus

Full title: SMITH et al. v. TARATUS et al

Court: Court of Appeals of Georgia

Date published: Feb 25, 1980

266 S.E.2d 281 (Ga. Ct. App. 1980)

153 Ga. App. 589

Opinion

57800.

ARGUED MAY 2, 1979.

DECIDED FEBRUARY 25, 1980.

Medical malpractice. Fulton Superior Court. Before Judge Tanksley, Senior Judge.

Peter J. Krebs, for appellants.

Daryll Love, Anthony L. Cochran, Palmer H. Ansley, for appellees.

McMURRAY, Presiding Judge.

The Supreme Court, in Taratus v. Smith, 245 Ga. 107 ( 263 S.E.2d 145) (1980), having held there was no express warranty by the defendant doctor proven by plaintiff that his orthodontic treatment would cure the plaintiff's minor daughter's condition and that he had in fact fully corrected the daughter's problem when she was released, the testimony of the minor patient's mother being merely conclusory in nature, the decision of this court in Smith v. Taratus, 151 Ga. App. 28 ( 258 S.E.2d 722), wherein we reversed the trial court, was reversed.

Based upon the opinion and judgment of the Supreme Court, our opinion and judgment in Smith v. Taratus, 151 Ga. App. 28, supra, is vacated and set aside. The trial court did not err in directing the verdict as to the alleged express warranty in that it cannot be said from the evidence submitted that both parties "understood and agreed to the same thing." Atlanta Tallow Co. v. John W. Eshelman Sons, 110 Ga. App. 737, 751 ( 140 S.E.2d 118).

Judgment affirmed. Smith and Banke, JJ., concur.

McMURRAY, Presiding Judge.

ARGUED MAY 2, 1979 — DECIDED FEBRUARY 25, 1980.