*1 Thereby delinquency proceedings venue in and statement of facts be filed in prescribed being court where 9th Appeals Court of Civil on 13 in con- proceeding pending and laws Such 1961. cause was transferred Accordingly repealed. flict therewith were to this Appellant court on 19 1961. June exception supra yield to Section has must filed no brief nor offered reason 4(f). for failure to do filed so. has appeal motion to dismiss such because judgment is af- trial court pellant required by has filed no brief firmed. the Texas Rules of Civil Procedure. our view that such grant- motion should be ed, and appeal dis- missed. See Rules 414 and T.R.C.P. accordingly dismissed. STEPHENS, Appellant, Alvin Watts DOWNEY, Sr.,
Thomas M.
No. 3933. Howard N. ALLISON et Appeals of Texas. Court Civil
Waco. BLEWETT, Appellee. K. E. July 5, 1961. Civil
Austin.
June July 19, Houston, appellant. Weinberg, Leon Owens, Orange, appellees.
Sexton McDONALD, Chief Justice. appealed
Appellant from ren- him, transcript and caused dered *2 Gladys B. Alli-
ard Allison his wife N. son, appellee, E. K. filed this suit Blewett, They alleged damages. that for February gave Allison a. and that baby a at o’clock birth to m. appellee, physician, per- her attending her off ligation formed a tubal and tied tubes; five gamogénesis at about that p. day appellee m. that told o’clock her working while was appendix and abdomen he removed her hospital shortly all bills and fees afterwards appellee paid. were not charges paid were for appendectomy. Appellants alleged that about began Christmas in 1957 Mrs. Allison pain having in her side went to family treatment; her that she told said doctor that her appendix in that because of this diagnosed information her her said doctor appendi- trouble as other than citis; that on or March about 1958 her family doctor caused an be made appendix ruptured; her showed had thereafter Mrs. Allison was confined hospital, a home, operation, at had an hospital and expenses incurred medical suffered other for all of which they Appellants they sued. medicine; were they untrained re- appellee’s lied on re- had they moved Mrs. Allison’s reason to doubt the statement and they prudent acted in reasonable and Appellants alleged fiduciary manner. existed between Allison; fraudulently that he con- her cealed true facts from wrong- fully told her pendix. summary filed a motion for judgment which was sustained. Wade, Austin, S. John points. seven Appellants present These Tyler, Austin, Taylor Taylor, Kerns B. that the trial the effect court erred are to appellee. summary motion for granting grounds that: on the there was
GRAY, Justice. pre- an issue of fact was since no fraud not the alleged to whether or summary sented judg- is from made; was that an intent 1, 1960, appellants, false statement How- On ment. to mislead discovered that was shown; is no still maintain cannot this suit. Mrs. Allison’s should have removed Regardless designation given was no contractual that there *3 necessarily to this suit it is dam a suit for lation between and Mrs. ages physician surgeon for the of a act or appellee did to remove regularly in engaged practice the medi ap- removing Allison’s charge usually cine. Such as suits are referred to cause of action malpractice suits for which has de neg- limitation; by contributory barred fined as follows: ligence. “ deposition
Mrs. Allison testified
‘Malpractice’, also sometimes called
alleged made the
and
‘malapraxis’ means
or unskillful
bad
deposition
making it.
denied
practice, resulting
patient,
in injury to
comprises
and
all acts and omissions of
Admittedly
presented a fact
issue.
this
physician
pa-
surgeon
or
as
to a
such
materiality.
dispose
We will later
of its
such,
tient
may
physi-
make
surgeon
civilly
cian or
either
or crimi-
Appellee says
even if the
nally
Kahle,
Bakewell
125
liable.”
v.
by appellee
there
false statement was
127,
Mont. 89, 232 P.2d
any
is
it was made with
no
fraudulent
intent.
It has
also been
‘malpractice’
presents
“A
action
making
The intent of
nature,
hybrid
one
claim of a
in that in
eyes
the statement
is immaterial
the
upon
aspect
negligence and
it is based
the law if in
or
fact the
mislead
contract,
breach of
deceived
Blan
Culbertson v.
‘malpractice’ may
and the term
chard,
700;
79
15 S.W.
General
plied
act
single
or to a course
Corp.
Accident Fire & Life Assur.
127
treatment.”
Peters,
Giambozi v.
Marker, Tex.Civ.App.,
For .reasons later it opinion stated is our deciding out false state that even presented if an issue of fact is made, ment was there is pleading neither appellants as to when did or proof February 22, nor that on
¿85 undisputed simple that a then diseased appendix was Allison’s it why presence would have any cause disclosed existed then there operation appendix. Allison’s should be at that time by appellee performed then general person mak- “A rule cause the was calculated to caused or ing representation only accountable require its become diseased or pendix to very its honesty person truth or to the Neither in the future. moval influence; persons whom he seeks to for the false pleading proof nor repre- one else has a appen- Allison’s allege falsity sentations and its prior have been dix would Wall, wrong to him.” Westcliff v.Co. *4 time that prior to the Christmas 271,267 544,546. it had not it was discovered that state- years after the six moved right of the second doctor record In this state of ment was made. Blewett statement Dr. between see no causal connection we not before us. damages sus- appellee and the my opinion appellants, cannot be Allison did and it tained rely upon harm alleged representation to her injury. would not have resulted. points
For reasons stated the trial are overruled and the court affirmed. HUGHES, (concurring). Justice my opinion Mrs. Allison In et Walter GREEN state- rely implicitly removal regarding the of Dr. Blewett ment superior and appendix. He of her V. A. GOMEZ peculiar truthfulness had sus- If Mrs. Allison this statement. any injury damage as a result tained of Civil then, statement, my opin- reliance on this Eastland. ion, she could recover. Feb. nothing to herself of Allison did April 21, reliance on nature as a result of harmful Dr. attributed imparted this true that she Blewett. It is doctor in the course
information another This examina- of his examination of her. tion of Mrs. Allison independent investiga- the nature and, conducted tion law, charged with she matter of proper examination knowledge of all that investigation disclosed. Beaumont, Williams, Tex.Civ.App., Gray v.