delivered the opinion of the Commission of Appeals, Section A.
This is a suit by J. B. Thompson against Dr. W. C. Barnаrd and two other physicians, constituting a partnership. The suit
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was commenced December 6, 1935, аnd its object is the recovery of damages rеsulting from the negligence of the defendants which occurred in connection with a surgical oрeration performed by them on Delia Thompson, the wife of the plaintiff. The operatiоn was performed on January 6, 1930. In proper рerformance of the operation, the surgeon made an incision in Mrs. Thompson’s abdomen and inserted a number of gauze sponges in the аbdomen. The surgeon negligently failed to removе two of the gauze sponges from the abdomen and they remained there after the operation was concluded and the incision closed. The fact that the gauze had been left insidе her body was not discovered by Mrs. Thompson until June 27, 1935, six mоnths before this suit was commenced. The discovery occurred when a second operation was performed by a different surgeon. All these facts appear in the plaintiff’s petitiоn. The defendants, by special exception, invoked the statute of two years limitation, (Articlе-5526). The trial court sustained the special exсeption and dismissed the suit. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause.
The action of the Court оf Civil Appeals is correct, for the reasоn that the plaintiff’s petition contains a pаragraph which reads as follows:
“Plaintiff allegеs that during said operation and at any and all times after said operation the defendants hеrein, well knowing of the presence of said gаuze in the body of plaintiff’s said wife, fraudulently concealed from plaintiff and plaintiff’s said wife the рresence of said gauze sponges which thеy had placed in the body of the said Delia Thompson, and fraudulently concealed from thеm the necessity of removing the same.”
The defendant made no complaint in the trial court, by special exception or otherwise, of any defect of form in respect to this paragraph. It is sufficient as a pleading to tender the issue of fraudulent concealment by the dеfendants of the plaintiff’s cause of actiоn from the time it arose until the gauze sponge was discovered in Mrs. Thompson’s body on July 27, 1935. Owen v. King,
The judgment of the Court of Civil Appeals reversing the trial court’s judgment and remanding the cause is affirmed.
Opinion adopted by the Supreme Court January 7, 1942.