Craven v. Walker , 101 Ga. 845 ( 1897 )

Cobb, J.

Eliza Walker brought suit for damages against Craven. Her petition contained two counts. In one it was alleged, that the defendant held himself out to the world as a skillful physician and surgeon, and that she engaged him to treat her for an injury, which he treated so negligently and in such an unskillful manner that permanent lameness resulted. In the other count it was alleged, that defendant “ charged in the hearing of divers persons” that plaintiff was unchaste, and that she had been guilty of the offense of fornication with various persons, and of the offense of adultery and fornication with a person named in the petition. In his answer the defendant denied the allegations as to malpractice, and also denied that he had ever charged the plaintiff with having been guilty of unlawful sexual intercourse with the person named; and entered a plea of justification as to the other charges in the petition. After the plea of justification was filed, the plaintiff amended her petition by alleging that defendant had also said that she had been guilty of unlawful sexual intercourse with another named person, and that defendant had delivered her of a child. There was a demurrer to the amendment, on the ground that it added a new cause of action; that the words complained of were uttered more than one year before the amendment was filed, and that any cause of action thereon was barred. The jury returned a verdict for one hundred dollars on the count for malpractice, and nine hundred dollars on the count for slander. The court overruled a motion for a new trial, filed by the defendant, and he excepted.

1. The words alleged in the original petition amounted to a charge of general unchastity against the plaintiff, as well as a specific charge of adultery and fornication with a named person. Her cause of action was, that defendant had damaged her by words affecting her character for chastity. This being true, an amendment which alleged that the defendant had uttered words of similar import was allowable. Such an amendment did not set forth any new cause of action; it merely amplified the case made by the original petition; and it alleged in substance the same injury as originally complained of. When allowed it related back to the time of filing the original petition, and that not being barred, the amendment was not barred. There was no error in allowing the amendment, nor in overruling the demurrer of the defendant to the same. Hines v. Rutherford, 67 Ga. 606; South Carolina R. R. Co. v. Nix, 68 Ga. 572; Poullain v. Poullain, 76 Ga. 422; Augusta Railway Co. v. Andrews, 92 Ga. 707.

2. The plea of justification filed to the original petition could not, of course, be more than an admission of the words charged therein, and in no event could such plea be held to be a justification of words set forth in an amendment filed after such plea was filed. It was therefore incumbent on the plaintiff to establish the allegations of the amendment, and the court properly admitted evidence for this purpose. Nor was there error in admitting evidence that, after the suit was filed, defendant had spoken words concerning plaintiff, slanderous in their nature and similar to the words charged in the pleadings. This evidence was admissible to show malice, but for no other purpose. Adkins v. Williams, 23 Ga. 222; 2 Greenleaf, §418.

3. The court charged the jury that the defendant’s plea of justification amounted to an admission of the words charged in the declaration, and failed to instruct them in terms that the plea did not amount to an admission of the specific words set forth in the amendment. Abstractly considered, this was error; but we do not think, in the light of the entire record, the instruction could have misled the jury. The fact that thé plaintiff offered evidence to prove the allegations of the amendment would alone be sufficient to show the jury that the court did not, by the instruction referred to, intend to say that the averments in the amendment were admitted as true.

4. The evidence failed entirely to sustain the allegations in the count for malpractice. The evidence on the other branch of the case, while directly conflicting, was sufficient to authorize the verdict. The judgment is affirmed, with direction that the sum recovered for malpractice be written off from the verdict, that the judgment be amended accordingly, and that the costs of this writ of error be taxed against the defendant in error.

Judgment affirmed, with direction.

All the Justices concurring.