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ELLIS v. KITE (two cases).
39903.
39904.
FELTON, Chief Judge.
Actions for damages. DeKalb Superior Court. Before Judge Dean.
1. "No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute if commenced simultaneously; and the pendeney of the former shall be a good defense to the latter, if commenced at different times." Code 3-601.
2. ". . . [F]rom a single wrong but one cause of action can arise. So long as a plaintiff pleads but one wrong, he does not set up more than one cause of action." City of Columbus v. Anglin, 120 Ga. 785, 791 (48 SE 318); Hamlin v. Johns, 41 Ga. App. 91 (2) (151 SE 815). "A single wrong will not be made plural by alleging that it is made up of a number of constituent parts." Anglin case, supra, p. 792. "If there is substantial identity of wrong (which necessarily includes identity of the right violated), there is substantial identity of cause of action." Anglin case, supra, p. 793; Milton v. Milton, 195 Ga. 130, 133 (23 SE2d 411); Cheatham v. Palmer, 191 Ga. 617 (13 SE2d 674); Jenkins v. Bridges, 93 Ga. App. 241 (91 SE2d 317).
3. "Amendments are allowed to cure defects . . . So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action." City of Columbus v. Anglin, 120 Ga. 785, 793, supra; Spielberg v. McEntire, 105 Ga. App. 545, 547 (4) (125 SE2d 134).
4. In the instant case, the petitions alleging negligence of the defendant in leaving gauze within an incision of one of the plaintiffs following an operation and failing to locate and remove same in a later exploratory operation set up no cause of action different from pending actions in which it was alleged that the gauze was left in the incision following the second, rather than the first, operation. Under the rules of amendment, the plaintiffs could have amended their petitions by setting forth their causes of action in one or more counts.
The court did not err in sustaining the pleas in abatement and dismissing the actions.
The petitions alleged substantially as follows: On March 12, 1959, the defendant, a licensed physician and orthopedic surgeon, performed an operation on Mrs. Ellis to repair and treat a fracture of the neck of the left femur. In performing this operation, the defendant left a foreign object in the incision which caused infection and failure to heal. Following an exploratory operation performed on December 18, 1959, to determine the cause of the infection, the defendant failed to remove from the wound all of a vaseline gauze or sponge, which had been packed into the incision to allow healing of the wound from the inside following the exploratory operation. Although the plaintiff, Mrs. Ellis, was treated by the defendant for ten days in the hospital and for several months after her release from the hospital, he was negligent in failing to detect and remove the foreign object for more than 14 months after the second operation. The defendant's negligence was the proximate cause of alleged permanent physical and nervous disabilities.
The defendant filed pleas in abatement which alleged that the two instant suits were for the same causes of action as two other pending suits against the defendant filed by the plaintiffs in DeKalb Superior Court on March 9, 1961. The pending petitions alleged substantially the same facts as the later petitions, with the following material exceptions: In the first suit: Mrs. Ellis sought $50,000 damages, rather than $30,000; it was alleged that Mrs. Ellis did not know of the presence of the foreign object within the wound; the gauze was alleged to have been left in the wound following the first, rather than the second operation, and hence to have remained within the wound for 23, rather than 14, months; Mr. Ellis itemized alleged reasonable and necessary expenses totalling $2,891.34, rather than an unitemized sum of $471.80 for practical nursing help in the second suit; Mr. Ellis alleged in greater detail the services of his wife, for the loss of which he sues.
Troutman, Sams, Schroder & Lockerman, William H. Schroder, T. M. Smith, Jr., Robert L. Pennington, contra.
O'Kelley & Hopkins, William C. O'Kelley, for plaintiff's in error.
DECIDED JANUARY 21, 1963.
Friday May 22 22:13 EDT


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