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Hospital lien. Before Judge Kennedy. Richmond Superior Court. July 11, 1957.
A petition which does not allege a cause of action for the only relief prayed sets forth no cause of action.
A petition was filed by the Hospital Authority of the City of Augusta against Dora Boyd, Henry Dawson, Viola Dawson, and Allstate Insurance Company, and service was perfected on each of them. The petition alleges that the petitioner is a body politic with authority to sue and be sued under the statutes of this State, that it operated as the University Hospital, that Dora Boyd was injured in an automobile accident on or about April 21, 1956, and she was treated from that date until August 13, 1956, when she was discharged; that while she was in the hospital, she filed suit against Henry and Viola Dawson on April 30, 1956 in the Superior Court of Richmond County, Georgia, alleging that their negligence caused the injuries to Dora Boyd; that Henry and Viola Dawson placed the defense of the suit in the hands of Allstate Insurance Company which had written liability insurance covering the vehicle involved; that said company employed counsel and took over the handling of the defense of the suit; that after Dora Boyd was discharged from the hospital, a lien was filed in the clerk's office of Richmond County, Georgia, on August 17, 1956. A copy of the lien was attached to the petition and it is in the form of an affidavit by the director of the University Hospital that Dora Boyd was a patient from April 21, 1956, until August 12, 1956, that she is indebted to the University Hospital, which was being operated by Hospital Authority of Augusta, Georgia, in the amount of one thousand two hundred sixty-two and 40/100 ($1,262.40) dollars for care and treatment furnished Dora Boyd, that Dora Boyd claims Viola Dawson, Allgood & Childs, Adjusters, and Allstate Insurance Company are liable for injuries sustained on April 21, 1956, and that said hospital claims a lien upon any damages due Dora Boyd as a result of the injuries. The lien was filed August 17, 1956, at 9 a.m., and entered in the Hospital Lien Register No. 1, on page 121.
The petition alleged that Dora Boyd was discharged from the hospital on August 13th, 1956, whereas the copy of the lien asserted she was discharged on August 12th, 1956.
The petition further alleged that on December 5, 1956, Henry and Viola Dawson and Allstate Insurance Company, in recognition of their liability for damages to Dora Boyd, settled said litigation by paying an unknown amount to Dora Boyd for the injuries suffered by her without complying with the law relating to hospital liens; that they paid her sums in excess of the reasonable hospital charges incurred in the treatment of Dora Boyd's injuries, and the plaintiff in error has not released its lien or done any act waiving its rights to enforce its lien. An itemized statement of the hospital bill is attached as an exhibit to the petition. The petition further alleges that Dora Boyd acknowledged that the amount due for hospital services is reasonable for the care and treatment she received, and she agreed to pay the same as her obligation by executing a note which is also attached to the petition. The promissory note attached to the petition is partly printed and partly handwritten. The handwriting is legible, with the exception of the due date. The plaintiff in error urges that the wording on the line where the due date of the debt is ordinarily placed reads "Pending liability insurance." The prayers of the petition are for process, judgment against each of the defendants in the principal amount of the debt for care and treatment, together with one-third thereof as attorney's fees.
Dora Boyd filed a demurrer on March 9, 1957. The grounds of the demurrer were: Because the petition set forth no legal or equitable cause of action against the defendant; because the petition does not show how and in what manner the plaintiff is entitled to sue on the alleged account attached to the petition, and marked "Exhibit B"; because there is no allegation as to whether or not Dora Boyd was at the time in question a married woman; because it does not appear from the alleged note sued on, attached to the plaintiff's petition and marked "Exhibit C" that it had become due, and also that the allegations are too vague, general and indefinite as to the due date; because there is no allegation as to how and in what manner Dora Boyd should be liable to the extent of $421.13, or any sum, as attorney's fees. The note attached to the plaintiff's petition, marked "Exhibit C" provides for ten percent attorney's fee, but there is no allegation or any facts on which to predicate recovery of attorney's fee, because the plaintiff cannot maintain a suit against this defendant on an alleged open account, and also on a note for the same cause of action, there being no allegation as to what alleged cause of action plaintiff will stand on. The prayers are indefinite as to whether or not the plaintiff is suing on the alleged open account, or on the alleged note.
A hearing was held on the demurrer on April 12, 1957. The court entered an order sustaining the defendant's, Dora Boyd's, general and special demurrers and dismissing the case. This judgment apparently dismisses the case as to all defendants. To the judgment of the court the plaintiff in error excepted and the case is here for review.
In this opinion the plaintiff in error will be referred to as the plaintiff and the defendants in error as the defendants, the parties having occupied that respective relationship in the trial court.
1. The question raised by the plaintiff's exception to the judgment sustaining the defendant's, Dora Boyd's, general demurrer and dismissing the case as to her is whether the petition set forth a cause of action against the demurring defendant.
The action against all of the defendants was instituted under the hospital lien act of 1946, now codified in Code (Ann.) 67-2207--67-2213.
For the sake of continuity it is necessary to quote some of the provisions of the statutes. Code (Ann.) 67-2207: "Any person, firm, hospital authority, or corporation operating a hospital in this State shall have a lien for the reasonable charges for hospital care and treatment of an injured person who enters such hospital within one week after receiving such injuries, upon any and all causes of action accruing to the person to whom such care was furnished, or to the legal representative of such person, on account of injuries giving rise to such causes of action and which necessitated such hospital care, subject, however, to any
attorney's lien. (Acts 1953, Nov. Sess., p. 105)." Code (Ann.) 67-2208: "In order to perfect such lien, the operator of such hospital, before or within 10 days after, such person shall have been discharged therefrom, shall file in the office of the clerk of the superior court of the county in which such hospital shall be located and in the county wherein the patient resides, if a resident of this State, a verified statement setting forth the name and address of such patient, as it shall appear on the records of such hospital, the name and location of such hospital and the name and address of the operator thereof, the dates of admission and discharge of such patient therefrom, the amount claimed due for such hospital care, and, to the best of the claimant's knowledge, the names and addresses of all persons, firms or corporations claimed by such injured person, or the legal representative of such person, to be liable for damages arising from such injuries; such claimant shall also, within one day after the filing of such claim or lien, mail a copy thereof to any person, firm or corporation so claimed to be liable for such damages to the address as given in such statement. The filing of such claim or lien shall be notice thereof to all persons, firms or corporations liable for such damages whether or not they are named in such claim or lien. (Acts 1953, Nov. Sess., pp. 105, 106)." A part of Code (Ann.) 67-2210 reads: "No release of such cause or causes of action or of any judgment thereon, or any covenant not to sue thereon, shall be valid or effectual as against such lien unless the holder thereof shall join therein or execute a release of such lien, and the claimant, or assignee of such lien, may enforce said lien by an action against the person, firm, or corporation liable for such damages. If the claimant shall prevail in such action, the court may allow reasonable attorney's fees."
The petition failed to allege a cause arising under the hospital lien law against the defendant, Dora Boyd, for the reason that the statute referred to gives no right of action against the patient to whom hospitalization is furnished, but only against those liable to pay the patient damages. The right created is analogous to the remedy provided by the garnishment laws.
A petition that sets forth a cause of action for relief that may be granted under the prayers of the petition is not subject to general demurrer. Roughton v. Thiele Kaolin Co., 209 Ga. 577, 579 (74 S. E. 2d 844); Robinson v. Modern Coach Corp., 91 Ga. App. 440 (1) (85 S. E. 2d 826).
Some of the allegations of the petition would have been appropriate in laying a case on quantum meruit against Dora Boyd, but the relief prayed was against all of the defendants and could only be granted in a suit brought under the hospital lien act. No cause was alleged against Dora Boyd and the case was properly dismissed as to her.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Isaac S. Peebles, Jr., John F. Hardin, contra.
Fulcher, Fulcher, Hagler & Harper, for plaintiff in error.
Saturday May 23 01:50 EDT

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