Perry v. Hodgson , 40 Ga. App. 117 ( 1929 )

Luke, J.

“1. Where a surgeon enters into an agreement with a person merely to perform a certain operation, and the surgeon in violation of the contract goes further, Avithout an emergency, and performs another operation which is unauthorized by the agreement, or by an emergency necessitating the additional operation, and injury results to the patient, the surgeon can not relieve himself from liability by showing skill and care in the other operation.

“2. Whether plaintiff consented to the operation that Avas performed, and Avhether his consent Avas implied from the circumstances, Avas a question for the jury to determine under all the circumstances.

“3. Under the facts of this case it Avas not error to admit evidence of surgeons to sIioav that the operation performed Avas a usual one in such cases, and that it Avas done Avith skill and care.

“4. Generally instructions by the court must be Avarranted by the evidence. Where instructions are given that are not Avarranted by the evidence and are calculated to mislead and confuse the jury, the error requires a neAV trial. The instructions given in the instant case, to Avhich exception is taken, Avere not authorized, and Avill require a neAV trial.”

The above are headnotes to an opinion rendered by the Supreme Court on certiorari in this case. For full opinion see 168 Ga. 678 (148 S. E. 659). Under these rulings the judgment of this court rendered in this case on November 15, 1927 (37 Ga. App. 314, 140 S. E. 396), must be and is vacated, and the judgment overruling the motion for a neAV trial is Reversed.

Broyles, O. J., cmd Bloodtcorth, J., concur. Branch & Howard, Colquitt & Conyers, for plaintiff. L. J. Steele, Hugh Burgess, Bryan & Middlebroolcs, for defendant.