*1
801
thereof,
indorsee
the
is tolled in
Case, supra,
court
statute
Cartwright
In
the
the
n
favor
although
of
true
the
the
appears to
owner
person who
said:
“The
note,
latter does not
intervene or become a
legal
promissory
holder
the
of
party to the record
may
until after the bar
upon
in
maintain
action
would,
ownership
suit,
for
filing
the
the
name, although
own
the actual
have attached.
holding
is
the
inis
another.”
intervention does not
a new
constitute
however,
does,
assignee
Where the
Gantier,
cause of action. Field v.
8 Tex.
himself,
substituting
intervene, instead of
74;
O’Roork,
215;
v.
Foote
59 Tex.
Han
plain
original
the
brought
or is
tiff,
in for
Drennan,
na
Posey, Unrep.Cas. 536;
v.
2
party bringing the suit
the
Triplett
Morris,
50,
Tex.Civ.App.
v.
684;
18
thereby
responsibility
from the
exonerated
44
(Tex.Civ.
S.W.
Howard v. Stahl
suit,
plaintiff
as the
the suit. The
App.)
See, also,
802 Hollander, filed against this suit the West Texas Hospital, alleged corpora- to be a tion, Dr. West, C. Wagner and Dr. Anne J. sole, a feme damages recover alleged to *3 have been by plaintiffs sustained on ac- malpractice count of and negligence of defendants which resulted of in the death Edwards, Mrs. Vergie the wife E. of P. Edwards, the mother of three minor
'children, and the daughter of Mrs. T. C. Hollander. juryA had impaneled, been but, after
plaintiffs had closed in the introduction of their testimony, the court directed verdict in behalf of the defendants. petition The plaintiffs is unusual- ly lengthy, but the material facts brief- ly state as follows: prior 8, On February Vergie twins, pregnant Edwards was West, and on date Anne as her at- tending physician, delivered her of of one children, but did not deliver other. regular The child which was born in the way plaintiffs is one of the suit. Immediately of after birth the first child, lady neighbors, some friends of Mrs. present at Edwards who were the time of confinement, “large her noticed a mass or abdomen, upper part knot” in the of her which, ascertained, subsequently In the of a few was another fetus. course position and changed hours fetus lower of was in the the abdominal or cavity. pelvic February, day days On the 10th two thereafter, brought Mrs. Edwards was twenty-two from her home miles Hospital diag- at for West Texas Lubbock treatment, and arrangements nosis for patient. were made her remain as a alleged It is that Dr. C. was an J. official and director and chief of the staff physicians practiced at said hos- pital, and that he assisted in the manage- Vickers, Campbell Evans, & of Lub- ment it. bock, appellants. for . remained at She said under the Bledsoe, McWhorter & Howard and supervision, treatment, and care of the de- Dupre, all Lubbock, Crenshaw & days, fendants for eleven during which Seay, Lipscomb Touchstone, Malone & time Dr. West visited her two or three Gormley Price, Wight, Dallas, & prescribed treatment times. The ministered consisted of and ad- appellees. enemas, packs hot abdomen, on her and sedatives. The mass HALL, Chief Justice. in her abdomen and the swollen condition Edwards, joined by P.E. body very noticeable, his three her minor of and her mother-in-law, children and his suffering Mrs. T. intense. C. in- the diagnosed affliction, Defendants trouble as nature of her performed flammation, tumor, bowels, gas locked all things necessary to relieve condition, in her. while on the stomach. Her failure to make an exam- ination days, proper im- and a hospital the prove, but, did not laboratory eleven test are charged wit- two of as stated some the acts negligence. nesses, day day. became worse from hospital answered, denied its rela- At removed lie end of that time she was tion to physician who treated Mrs. home, by Wagner to her and was told Dr. Edwards, admitted complete had a continued that such treatment should be X-ray machine necessary equipment re- procured. and for a She nurse to be for examining and treating patients, week, during at home about one mained that Mrs. Edwards was in its which time Dr. Anne West continued *4 diagnosis for and treatment. It alleged her, at least treat and called to see her that it incorporated was an hospital, and as twice. merely such undertook to furnish reason- On the 3d of March thereafter she was able accommodations for the sick and af- brought Sanitarium, to the Lubbock at flicted; patients it furnished to its Lubbock, Tex., and a it was decided to be physicians rooms, and surgeons, beds, lin- requiring but, case surgery, immediate on ens, foods, nurses, trained rooms, operating condition, account of her she had to be X-ray equipment, necessary and other and up> operation per- toned and the was not suitable facilities. It denied that had 4th, formed morning until the of March at ever diagnose undertaken to pa- or treat which gallon pus time more a and than of tients, practice or to either medicine or liquid was drained from and her abdomen surgery, merely seeking to furnish such the dead fetus was discovered and re- means and facilities might required moved. It was also shown that the uter- by attending physicians surgeons. and It ruptured. us had been The fetus was specially further employed denied that it was ever badly condition, decomposed a and re- diagnose or treat Mrs. Ed- hospital mained in the week for about a wards, or ever undertook to do so. de- It and died on March 1934. codefendants, nied that its Wagner Drs. West, and acting were for capac- it in hospital X-ray had an It was shown ity in such diagnosis and treatment ren- machine, and least two of the doctors at dered, alleged they but following were X-ray that an examination testified independent their own callings in so do- Edwards would have shown whether Mrs. ing; only relationship which ex- patient was afflicted a tumor hospital isted between the abdomen; and the two doc- a in her that there was provided fetus usually tors was ly and customari- fetus was over four and one- any physician exists between patient and ap- age. The fetus had half months of parently hospital patient in which being period lived the full allegation treated. The of the existence by opening gestation, and it was removed partnership by a was denied verified wall; being no other the .abdominal plea. delivery op- surgical than a means for its further tends to eration. show that admitted her relationship Dr. West female, fully was the fetus a physician Mrs. Edwards as that of ready parturition developed on patient, alleged diagnosed that she February 8th. Edwards’ Mrs. trouble as ovarian tumor brought and had her to the defendant hos- alleged that Mrs. Edwards was pital diagnosis by and treatment and all of defend- patient of each nurses, doctors and partic- and its and in ants; partnership a existed between by Wagner hospital. ular Dr. of said test, laboratory She them; an alleged gave that she her proper examina- codefendants and skillful as well as a tion, complete history of Mrs. Edwards’ condi- disclosed her condition have affliction; of health as it had been her tion her, observed of her nature and the and as related to her Ed- negligence of the de- Mrs. death was due them, wards and her husband. admitted in fendants, in not know- She and each of allegations her that she did not know that discovering the nature of the trou- ing abdomen, Edwards had a fetus in her surgical Mrs. ble, failing to remove it skill, careful, ordinary ordinarily pru- allege did that she used operation; but that an care, prudence, vicinity diligence dent, to ascertain surgeon and skillful having her condition and in brought and known her have discovered Lubbock would
SOo baby birth of the 8th Dr. West hospital nurses, morning to the on and its doctors and and further returned and said: alleged that “Mrs. Mrs. bowels; Edwards has her locked we will operated upon informed that she have give her an enema and if she is for ovarian tumor years prior several better might question. morning take time in her hospital”; to a brought that Dr. West de- general answered the February; hospital to the on the 10th of murrer, denials, Ed- admitted that Mrs. contemplated that it was first him, he made brought wards by Edwards and his wife go she should physical, examination manual to the Lubbock Sanitarium instead of body purpose for the of Mrs. Edwards West Hospital, finally Texas went to ascertaining of her the cause condition the latter hospital at the instance sug- case, the means using her diagnosed gestion West; of Dr. upon arrival at opinion judgment as which in his and best Mrs. Edwards was immediate- necessary physician surgeon ly taken charge byof the nurses of the in- determine, diagnose, and ascertain stitution hospital. carried into the He suffering cause of her and ailment. Lee, neighbor Edwards, allege diagnosis did not what accompanied im- who did not other than that he believe West and Mrs. Ed- necessary, wards operation mediate said she saw Dr. *5 Wagner operation and have and Dr. talking, that such an West and that Dr. endangered Wagngr Edwards, her death or resulted either in said to Mr. “Go and her life. make financial arrangements with the hospital and then we will do everything present appellants the contention her, we can for hope and we to' have her propositions in that several the court right all in days.” a few Mrs. Lee was erred in directing a verdict because question asked the ’phoned direct if she testimony appel- case, raised the issue that the Dr. Wagner before their arrival with Mrs. properly diagnose lees failed to at replied Edwards that ’phoned and she prescribed inflammation, treatment stopped Dr. West said that she and tumor, bowels, and locked which consti- appointment to' an make with the testimony negligence, tute view of other hospital, and not Wagner, Dr. to receive showing X-ray that an examination would Edwards; Mrs. particular that no doctor have disclosed that there was a fetus was mentioned at the West Texas Hos- abdomen, her and that she had no tumor. pital; and that she previously had agreed There was an machine in to take Mrs. Edwards to the Sani- Lubbock hospital which could' been used and tarium. appellees which the failed to use. The That, Edwards testified: he when testimony West, further shows that Dr. reached the he found Drs. West who attended during Mrs. Edwards Wagner together, and they and before parturition and delivered her of the first anything they him said went into a back 8, 1934, February continued, child on and while, room and talked a and that when promised continue, to treat her in the Wagner Dr. returned he told Edwards that hospital, and her saw twice after she was his wife was in a bad condition and to hospital; removed to the that Dr. West arrangements make financial and “we will had told them several that she times her,” do all canwe and he was directed thought twins; Mrs. Edwards would have by Wagner Dr. see business mana- that Dr'. West also observed the knot or ger. That he went business man- lump upper part in the of Mrs. Edwards’ McLarty, and, ager, talking him, after with immediately abdomen after the birth step Edwards was asked to out until Mc- the first child and remarked that there Larty could confer with tumor; Wagner. Dr. that, might be a discussing twenty He recalled was or thirty after Edwards’ condition with Mrs. some minutes, and the manager business said to neighbor Edwards’ women him: “Your wife is in an awful confinement, bad con- opinion some was ex- dition, going and we are to take pressed her and probably that Mrs. Edwards would her,” asked, all we can for and do then delivered twins instead of one child. you pay and, anything?” us Edwards “Can delivery said that with the when first “No,” McLarty the afterbirth said was not like that with Edwards had him their children, $45, saying other and that “it had a note for that did sign more blood it”; night going do, and stuff in on that after the not know but that Fallopian testified money tubes. Dr. Stiles up some get sign the note could ectopic pregnancy; sign no was was the note after That meantime. in the rent Dr, opening that there was the room into Wagner went given the fetus treatment, through which wall of the womb as to gave some directions passed the abdo- placed on had from the womb into packs be hot that directed long abdomen, opinion men a time and it was his that patient’s stomach death, elapsed had and that it died since its That hypodermics. given that she be ruptured; de- when that present, the uterus was was two, when day or up; composition had set of the fetus pack came, removed Wagner operation only hope of remov- treatment, there an was the up keep said saving the life of the ing the child and reason inflammation, was mother. packs on her abdo- the hot keeping he was the swell- relieving purpose of men for the that, Edwards testified when the doctors Wagner, times different at ing. That baby lifted of his out of the abdomen him, wife that his said speaking wife, they laid it on her and cut the side keep just this “we will improving, and cord, baby dead and naval right.” be all up. I think she will decay; in an that it was advanced state of girl, every way, normal in had turned however, shows, her blue; its it was the same size as worse, steadily became .condition February twin sister born on the 8th of day day. swelling increased prior thereto. said that Dr. Edwards testified The court concluded cause of was the inflammation not, law, as matter of sufficient to abdomen, and swollen condition malprac- raise negligence the issue of tumor; probably she also tice, di- appellees motion made ready take Mrs. Ed- they were when *6 in rected a verdict their favor. We think home, Dr. hospital her to the wards from this error. was keep the hot them to directed Wagner days, By ap- three two>or the packs on for their first contention go back pellees hospital, this will the or three weeks insist that owner of a “in two that, referring swelling; individual, firm, corporation, the to whether an or right,” (cid:127) leave, ready busi- resulting to the they damages were liable from not for when permit treatment, them to diagnosis would or manager and/or medical ness ascertaining amount otherwise, the hospital, check out without in' said when such fee, that the doc- diagnosis and said Wagner’s were of Dr. treatment rendered fee, any him and he physicians employed by sent in to had not the some tor them, shortly get hospital, told the nurse one other such dam than for a note witness executed ages alleged negligence thereafter the from the resulted $27, payable Wagner, in addition physicians. to Dr. of such hospital in the to the new note made to a testimony is no is true there sign required $87.50, was sum of jury have a would authorized conclude permitted to re- he was before such notes any way West was in connected Dr. hospital. The wit- his wife from move stationery with the but used that he never testified ness further hospital authorities showed that Wagner Dr. ref- with with conversation Wagner hospital the head of Dr. was charges would the latter’s to what erence physicians surgeons, staff and the of of only manager with the be, talked and he briefly which we have outlined arrange- making financial hospital in showing manager the business above ments. referred financial matters to Dr. Wagner,' fees, for Key, of the took the note as well as the H. Stiles Dr. J. hospital expenses, Sanitarium, fees and both note for described Mrs. Lubbock by Dr. brought Wagner and the various statements when she was condition Edwards’ manager to what “we” on and the business home to their sanitarium her from do, They operation together do or endeavor to- with 3d. described March facts, other tended show business con- day in which the fetus early the next was abdomen, Wagner and the together nection between hos- removed directly was offered fluid, pital. No pus and and on gallon about an'd, question, upon although there was Dr. Stiles was asked cross-examination partnership, denial of we think the had been a sworn not the fetus which whether required to have ectopic was sufficient or one formed the evidence was removed tice, jury. trial court to submit that issue do not understand that to be the may partners Parties rule in bound as this state. parties partner- of a third the absence The sum and appel- substance of ship Moreover, hospital agreement. lees’ that, contention is because there was might its' be liable if Dr. present in the case no expert evidence as agent. to what method or means the exercise By ap- proposition their ordinary second care and skill should have pellees there be a employed insist before could been to determine presence them, recovery against have there must or absence of the second fetus in the ab charging legally pleadings been sufficient domen of Edwards, and because no expert hospital diagnose undertook to has appellees testified that the were Edwards, that guilty treat the condition Mrs. of negligence, there has been a fail guilty specific of negligence acts ure proof because, as to what is or is treatment, not, diagnosis proper practice question is a experts, such acts in damages. resulted and can be established their testimony. experts Two testified that partnership If a relation existed between the use would have shown Wagner, and Dr. or the evi- supposed tumor was a fetus. joint undertaking, dence showed the hos- Whether the failure to use negli pital charged, could be and we think gence question awas jury. pleadings support are sufficient to testi- They mony upon that issue. further insist the uniform holding of the courts is that it cannot and petition excepted to as should not be .left speculate ground, insufficient whether or not experts practice petition overruled. If fact the their profession pursued prop- plaintiffs insufficient and the went to trial er procedure. course relying on the correctness of the court’s agree do not ruling, they are that the law judg- entitled have the is as stated by appellees. The Constitution, ment reversed and the cause remanded in article 15, provides right plead- § order that amend their of trial jury shall remain ings. inviolate. We think questions of fact in this case By appel propositions several which should have been submitted to the *7 correctly insist the directed lees a court jury. testimony because there was no verdict undisputed The proof is that there was a any physician or other surgeon or rent or opening in the uterus at the time qualified testify expert witness to an fetus, the dead was removed from the ab- any any done failure to do act or domen. There is testimony some anything part appellees the of the on was effect that the wall of the rup- uterus was that, negligence. It is true in the absence tured the parturition. at time of The contrary, the of evidence to the law in fetus was in an stage advanced of decom- presumption physician a dulges the position, blue, had this, turned and with duty discharged has with reasonable the fully fact 'that it was developed and diagnosis and skill in his and treat care was of the apparent same size and weight ment, but we do not subscribe to doc the of the child alive, that was delivered might proof of trine that mere proof bad results is no be circumstances which the jury any case, negligence of in and that would determine that rup- the uterus was negligence experts the issue of is one for tured some period time the of la- only to determine. bor, which lasted from about 6 o’clock in true, the by appel- afternoon It is -also asserted until 7 o’clock the next morning. proposition, testimony in their seventh counter There no lees which care, any way that, diligence, tends to account in judgment, where due for the fact exercised, ruptured. skill a mere uterus was rup- and diagnose cian or are failure to This correctly not, physi does not ture could in the render a nature of things, have been the nancy. surgeon ectopic liable. While it jurisdictions result of an preg- be that, in doctor the rule some that it One testified takes cases opinion ectopic pregnancy conception than the of or of or more one more in the Fallopian tube, physicians period gestation effect that the of treatment given followed in a be than case should have been would not more about four five lay months, malprac- different necessary a foundation when it would become jury. case were submitted to a Mal through the abdominal remove the fetus practice op no charged, was was of the there result Styles stated that wall. shown, eration was of fact issues ectopic pregnancy. of evidence similar to raising the facts in this case testimony effect There is the ruptured 'question to, negligence of were submitted a uterus symptoms of there were passed upon by, jury. blood, of paleness or excessive loss of The (Tex. case of Turner v. Stoker Civ. that, when patient, testified etc. Edwards 190, 194, App.) 289 S.W. involved is delivered, the was first of twins the placenta negligence physician sue of a not like those was failing to advise the use of an other three of their after the birth taken patient any discover whether had bro placenta had more children, bones, point. ken and is a The case it than the afterbirths “blood stuff” evidence, pro con, was submitted any parturition. former on jury. Ridgell, Justice, a said: “While ruptured presence of a unexplained appellant diagnose was not bound to care uterus, of blood amount excessive fully or know which could any evi- placenta, of failure seen, many hidden, of our ailments Fallopi- ruptured show tending to dence an yet the fact he did not advise an testimony of tube, together X-ray, jaw did not discover the broken had fetus doctors that of some bone, guilty other failures -as ruptured, at the time the uterus died and the further witness, detailed was sufficient for immediately aft- fact that jury negli -the to conclude that he was proved delivery what the first child er gent.” (Writ error re-fused.) part upper fetus remained to be the that, In the case it instant was shown cavity and within few abdominal brought when Dr. Anne West was, down, in or near lower found hours the Hospital, gave to the West Texas Wagner cavity, thus inconsistent pelvic history case and of her an ovarian theory that with the patient. Three of the ladies were Mrs. from which tumor, circumstances are all neighbors, present Edwards’ and who were that some might have concluded jury during the hours of labor talked negligence. guilty had been one days with Dr. several West beforehand appel- jury might concluded that expected testified that Dr. West said she theory their of an failed sustain lees that Mrs. Edwards would give birth to ectopic one fetus pregnancy of twins, appeared and it that before the first the other. The pregnancy uterine child was delivered was a conversa- weigh the right has the Mrs, Edwards, tion between Dr. West and and Mrs. Hilton testified accept reject all or experts and to when Mrs. option. of it at their labor, suffering, inwas some- is sufficient to We think thing was said about Dr. West neg- whether there raise issue of *8 and, halves,” “working Edwards on if to ligence failing make ex- children, there two Dr. West would the between the time amination of get one get and Mrs. would the Edwards the Texas was carried to West Hos- other. pital and time she removed to her the was upon find investigation We that such home. questions uniformly of are fact submitted quarrel with the doctrine We no state, juries they to in this from which expert testimony upon is admissible permitted to determine whether there has care, skill, proper the th'e issue of whether negligence malpractice. been and Moore diligence diag and has been exercised in Ivey 283; (Tex.Civ.App.) v. Thorning 264 S.W. patients, nosing treating but fol (Tex.Civ.App.) Boriski v. 283 lowing cited cases in this state it is shown 912; S.W. Ford v. Couch (Tex.Civ.App.) question degree the of whether the 869; (2d) 16 S.W. Hamilton v. Harris care, skill, diligence as disclosed 533; 223 (Tex.Civ.App.) Lee S.W. v. testimony negligence preroga is is the the (Tex App.) 437; Moore .Civ. 162 S.W. Appellees the jury. the cite case of tive of Taylor Humphreys v. Roberson (Tex.Com.App.) S.W.(2d) (Tex.Civ.App.) 52 v. Shuffield (2d) 83 S.W. 311. Supreme find the 788, Court, we but In view of trial, another suggest (2d) 83 has reversed the S.W. that material testimony was excluded up- Appeals and affirmed the Court Civil objection appellees, on which was ad- trial The issues judgment court had stated he was Res Edwards gestae. res the rule of missible under present in the when circum- Lubbock Sanitarium those defined as gestae has been operation performed upon the last his and unde- was are the automatic stances which wife, and, referring to said: litigated surgeons, particular of a signed incidents ‘They pump out (pus) when illus- commenced to this act, are admissible and which -there, jar act, pumping defined in a as and further trative of such they was gallon about of this that under inves- of the transaction “the whole pumped they pumped out he every part gestae Res out. After tigation of it.” said, hear- reached down there and ‘Here is exception to the as an considered baby,’ they another say operation renders acts took it In its out.” rule. and declarations which constitute Appellees’ objected counsel testi- admissible in things done and said mony hearsay appellees. as to the The evidence, other- though even statement was made Dr. Krueger. The excluding hear- wise come within rule record plaintiffs shows that not suc- say self-serving declarations. evidence ceeded securing of Dr. attendance include, extended to The rule is Krueger. We think it was admissible un- suit, parties but declarations der the geste res rule. by bystanders includes statements made When asked to describe the condi circumstanc- strangers, under certain baby tion of the after it had been removed es. abdomen, from the mother’s said Edwards stand, upon While was was looking, it state of blue and seemed be in a colloquy testify as to a undertook decay. Upon objection appel- himself, wife, between and Dr. West his lees’ counsel stating grounds without day Mrs. Edwards was taken to before objection, it, of his sustained court hospital. interrupted His counsel requested not to consider that, question: getting before “Just witness’ answer. We think error. this was your enlargement state wife’s about that, upon suggestion seems compared other children she had had' to the West, or direction of Dr. Appellees’ objected destination delivered.” counsel changed Mrs. Edwards was the Lub upon ground that it “more medi was bock Sanitarium West Hos testimony non-expert Texas cal from a witness.” pital just city about the time objection, reached the court overruled the West, limits. Edwards larger followed Dr. much Edwards testified that she was wife, Lee, taking who was and Mrs. any than she had ever been with baby, carrying who was min ten other then about children. His counsel asked later, and, thinking utes you that his wife had him: “Did see or determine Sanitarium, carried been to the Lubbock movement?” This was answered in the affirmative, went and, over there. Mrs. Lee had left the appellees’ motion of Hospital West Texas to look Ed counsel, for Mr. question the court excluded wards, and him and met told him that his and answer from the consideration of the Hospital. wife was at This the West jury. testimony Texas think this admis objected because neither Dr. sible. Wagner nor West were shown to be Edwards had testified after his present. very little wife returned to her home from the hos value, probative under admissible pital, her abdomen continued swell. geste res rule nevertheless. The court objected This attorney sustaining objection. erred Hospital for the West-Texas *9 upon ground that it was describing Mrs. Lee was the oc hearsay. that, Plaintiffs’ counsel remarked they at time currences the response reached the negligence hospital. if on the of defendants is In question to a established, it becomes material as to had said: “Before we left the nurses negligence, what followed the and. got he and Mrs. came Edwards and carried thought upon theory. admissible that it was to another and lifted room her off this “Yes, sir, bed, put The court said: but also and her on rolling bed another jury against considered as one of nurses came cannot be in there and and By objection appellees’ them this time.” think that at We Ed counsel cut said—” fact, ground wards’ which was a statement of a further statement off any make, nonexpert and the nurse could statement not shown to authority proper for the bind it was to consider either defend- it. In original opinion, does our we held that The record inadmissible. ant was verdict, and, nurse the court directing of the erred in what not show answer been, en- after objection is another the state- careful review of would have but the charge of ment tirely pleadings, of facts and we are more The nurse too- broad. firmly statements convinced erred than make that the court numerous we opinion were when original that are admissible. written. Key en appears that Dr. Olan in a charged indulging are the dead operating while tered room opin- expressions number original ab from being removed fetus was easily prove ion which could to be mis- as He testified domen of Mrs. Edwards. Supreme leading confusing and follows: application Court in for writ the event an “Well, doctors removed when one presented of error should court. after-birth, is the placenta which or They charge that stated facts that we have and that remaining- portion pregnancy, record, are' not in the have mis- that we it, by down, ad- they described was bound represented that some misquoted, and things in the abdomi- hesions to absurd, findings of our conclusions cavity.” nal e., nonsensical, i. and have no basis the 'uterus evidence. We intention in “Q. Was it found there had no such original opinion, writing had a rent in it? but were or womb only by effort, prompted an earnest after he “Appellees’ knows Unless counsel: frequent consultations, correctly decide that, object to it. we light pleadings the issue in the of the “Q. you If know. evidence, opinion and we are still of “Appellees’ the witness Counsel: Unless that we succeeded. personally examination made perogative appellees It is the condition, hearsay, it would be knows question any challenge expression the other statement of one or based on the any part of our which opinion think hearsay present, physicians as facts, is variance pleadings, at with the to us.” law, appreciate any sin- we objection. help court sustained the The cere effort counsel to us correct our errors, provided they go to the do not ex- Key Afterward Dr. testified misquoting misrepresenting tent of these during the made the examination himself purpose laying predi- for the matters Key as operation. The of Dr. application cate for an for a writ of er- Krueger was excluded had said what ror. hearsay. ground upon the teeming That this case with absurdi- is testimony tend- we think certain Because etc., denied, ties, cannot be think partnership or establish the fact of ed to all, all, they nearly appeared if not before appellees, or relation between business reached will the case this court. We now them, and the further reason some of point some of them. endeavor to out upon the is- was admissible that evidence expression first which “assail” the failure negligence shown sue of absolutely without founda- “being X-ray exami- appellees to make an evidence” is-this: “On the tion in the nation, and because there is some evidence day February, days two thereaft- 10th ectopic no tending show that there was twenty-two er, brought Edwards was was ex- pregnancy, but fetus her home the West miles from to- Texas way pelled the womb in some diagnosis Hospital in Lubbock for directing a ver- labor, the court erred in treatment, arrangements were made dict. patient.” remain as a her to reversed, judgment therefore in that statement is a word If there cause remanded. and the fully sustained combined- point record, appellee failed out. The Rehearing. Motion for On merely complaint is if this Court finds *10 ' question brought into principal in this case Mrs. Edwards was is that Lub- The Hospital sufficiency for diag- the of the evidence to the West Texas to bock as to doctor, below, by appellants, plaintiffs some the and treatment entitle to nosis upon arrangements were made- for her to case submitted to the remain have the Hospital patient special as the issues. the West Texas
1gl supervision, der the of doctor, appellee has fault treatment and of that the no care statement, days, the during and insists fur- defendants to find for. eleven with the which she time ther to hold that her two if intended Dr. West visited or three placed times.” hospital diagnosis for in the such, by institution as the treatment principal the effort on this were made for arrangements appellee trial, clearly throughout the as patient, then the state- remain as' its record, shown the was to divorce it- any “absolutely ment is foundation without entirely self any act of omission or in the evidence.” commission might which the have shown resulted in the death of Mrs. upon state squarely the stand We Edwards, and, Pilate-like, in this motion opinion. original ment made in as hospital still seeks to wash its hands be Appellee’s not could insistence liability; deny cannot the fact but it hospital is patient at variance of the nurses, X-ray machine, that the packs, hot word definition every judicial with hypos parts syringes constituted of its find. “patient” been able to which we have “facilities.” is a matter of common has “patient” as “one who A is defined knowledge duty is the of the nurse asylum re and has been committed to the keep chart,” * * * what “patient’s is called a care mained there showing at stated intervals the condition 488, Barton, treatment,” 153 Cal. Aldrich v. patient respira- temperature, as to and, re- 900, 904; where mother 95 P. tion, pulse, etc. It is further a matter of hospital treatment of turned to a common knowledge that the attending childbirth, and resulting from conditions physician depends upon fidelity hospital with baby to the the her for was taken nurse the correctness of this record pa- nourishment, baby prognosis. for his duty It is further the Hospital Ford v. hospital. tient in the the nurse to administer such nourishment York, Etc., Fidelity, 106 Neb. of New Co. directs, attending physician as the and ad- 656. 183 N.W. apply remedies, minister or such external- hospital alleges In its answer ly, hypodermically, intravenously, per or connection with its “sole and orum, physician attending directs. was to furnish such case of the deceased To that through extent the its usually customarily are facilities as nurses, supervised the treatment and care patient hospitals to the of a furnished days of Mrs. the eleven might physician place surgeon who see fit or hospital. she was did not find hospital; in its patient such en-, specifically legal as a * * * in manner this defendant no tity diagnosed the case or that it was its attempted participate or interfere with duty so, duty to' do but it was of its diagnosis and/or treatment such nurses, instrumentality through the of its a basis for its merely render such facilities undertook chart,” “patient’s keep such services avail- to them and available diagnosis, extent, doctor’s and to that usually and custom- able to them as are arily certainly duty, mean which is no hos- care by hospital to the attend- furnished participated pital treatment and physician surgeon regard to ing Edwards, of Mrs. and this without regard hospital.” patient be in said might nourishment, the administration of appears allegation in sub- Although medicine, application packs, and of hot oth- answer, appel- times stance several upon incidental which devolved er duties specify not to what facili- careful lee was hospital and not the doctor. Who can available to them were ties and services correctly say keeping the chart is not Edwards, but makes rendered patient? caring for And can de- appli- that such facilities and general statement patient, the nourishing nied that usually customarily enemas, services packs, giving hot cation of hospital were rendered furnished administration of sedatives and and the remedies, externally internally this case. (all other usually which duties devolve is sufficient sustain a find- The record treatment? We nurses), think jury that Mrs. Edwards was ing Any decided. other jury would have so both doctors and hos- the pital. might decision be absurd. certainly There is abundant. next assaults the appellee follow- Mrs. Edwards hospital,' tends to show that remained at said ing: un- “She *11 and the Lubbock, Drs. West patient, suburbs of tele- Dr. West phoned hospital, and Wagner, three hospital of the some one but at defendant Upon and her. so considered took defendants Mrs. Edwards there. Edwards hospital, had wife, West, at the followed arrival of Mrs. Edwards and one Dr. West, Wagner of accompanied by Lee, Drs. Dr. Mrs. neighbors, Edwards’ a Mrs. town, held to room and and went a back but he West into was several miles behind They then them Sanitarium, time. and a consultation for some went to' the Lubbock wife expecting and his returned where Edwards to find to them there. The might of Mr. were, promptly made an have believed that Dr. West arbi- trarily Dr. pocketbook and assets took Edwards’ to defendant your hospital. times, find Wagner’s him: “We saying to She visited her several condition, if awfully and ly- bad consulted Wagner frequent- wife you pital with Dr. the hos- arrangements can make with her—finan- do all we can for we will While finally Edwards made one note hospital. Can arrangements cial with hospital services, etc., room, for its you pay any way?” re- some fee Edwards separate Wagner note to Dr. for his pay plied: any money. I can’t “I haven’t compensation, note, first, the last like the Wagner then said: anything now.” Dr. was taken manager business of the the business will to see “You have mana- hospital they when decided take Mrs. to go. ger,” and Edwards where told home, Edwards back to her said the con- having Lee heard also testified several times that note was “for our doc- Ed- Wagner and versation between Dr. tor’s fees.” According to Edwards’ tes- wards. timony, manager hospital re- permit fused tO' away testified that he found the to be carried Edwards then “ satisfactory until manager inquired: ‘Can Edwards had made finan- business ‘No, says, arragements I cial you pay anything?’ hospital and I with both the us says, and you Wagner. He Dr. give will a note.’ have says, way.’ I T handle it that ‘We can’t Speaking exactly why of absurdities— pay money. anything I can’t have no manager hospital should in ef- says, He try get I some.’ now. will hospital fect assert that the had pledgee’s Wagner,’ step I talk to Dr. ‘You out until person lien of Mrs. stepped and I outside the room.” pawn would hold her in until “our doc- paid” tor’s fees are tor and is not clear if the doc- after further testified that about He hospital acting independent- him twenty clerk called minutes the outside ly. day Mrs. Edwards left McLarty the hos- (the Wagner and in where Dr. pital, the manager asked McLarty girl, were, .office manager) business “What about our doctor’s fees?” She re- wife is in an awful bad condi- “Your said: plied, Wagner “Dr. hasn’t sent them in going to take her and do tion and we yet.” sign a note can for You can all we her. here $45.00.” frequent “we,” use of the words, “us,” “our,” by Wagner hospital, were made concern- After some remarks manager business and the course, McLarty baby, said: “Of ing the interest manifested each in securing the going do all we are we don’t know what other, fees due the tend to refute the in- 'her, you sign. can the note how and vehemently sistence so made movant you get see if can us some in the meantime there was no connection between money.” Wagner and the they but that say, parenthetically, that might independently each acted of the other. exposure. getting good succeeded Appellee brands' our statements on this was involved in the Dr. West Whether “absurd”; is, issue as nonsensical. matter, acting conjunction and was with true, That many but so absurd in .treating things said been and done before patient, should have'been joint their sub- case reached us that absurdity one more regardless jury, of the issue mitted to will make no difference. partnership. A statement of Edwards’ ap- account expressed pears Both Edwards and his wife in the statement of facts. Sanitarium, headed, go desire to the Lubbock “Statement Hospital.” West Texas home, record, according After the names of the manager business left intention, but, superintendent nurses, when reached and the ap-
813 might opened said hospital, s be in it the Wagner Ds. Dr. M. pears a list of eleven inquiry door for an as to what treatment heads the list. name rendered, and services were for the parades in that all It is our observation application the rule of common knowl- the column. head of rides the the chief at edge to such in matters. Their contention list stationery with emblazoning In its regard parity this is on with the conten- doctors all (presumably talent of medical stating: tion that we erred in “It was Wagner why was Dr. ability), of skill hospital X-ray shown the ma- had an ar- They not were placed the head? at chine.” It is true that no witness testified because, had if this alphabetically, ranged had an machine done, “tailed would have Wagner Dr. been used, which was not and the failure to use not doctors were herd.” If the eleven it However, negligence. constituted in its why hospital, go medical staff of hospital alleged answer the an that it owned on names expense printing their X-ray machine, and, the con- Key, stationery? names of Drs. its pleadings, unnecessary dition of the it was it. not on Stiles, Krueger, are and Clark any testimony. to introduce saying severely criticized We The rule is well in established We Wagner surgeon. chief that Dr. necessary Texas that it is never prove, no direct humbly we find confess that alleged par the existence a fact both desperate In the effect. evidence to that Waggoner ties. Edwards (Tex.Civ. v. reached condition which 655; App.) Mary 68 Lafield (2d) S.W. v. very best doctor on Casualty 466, Co., land Tex. 119 33 S.W. assigned her case. staff should have been 187; Anderson, (2d) Caulk v. 120 Tex. just told Edwards (Dr. Wagner had 1008; (2d) 37 S.W. Luckel v. Sessums awfully condition.) If bad wife was 579; (Tex.Civ.App.) (2d) 71 S.W. it South requirement, Wagner fill Dr. did not Greyhound land Taggart Lines (Tex. v. help hospital’s case does 244; Civ.App.) S.W.(2d) 70 Yarbrough But, Wag- whether Dr. be known. fact to Ry., v. Etc., Dallas only (Tex.Civ.App.) Co. priest or as high ner as officiated 1093; 67 (2d) S.W. Robbins v. McFadden Levite, sacrifice remains fact (Tex.Civ.App.) (2d) 61 S.W. 1032. and, any grati- will complete, if it movant, we will withdraw fication to severely say- We are also criticized for chief the statement that ing diagnosed that defendants her trouble no one but surgeon, but-still think inflammation, tumor, bowels, locked surgeon chief have undertaken should stomach, gas on the and movant as- awfully patient condi- in the bad treat a “absolutely serts that our statement during the tion he said Mrs. Edwards was support any evidence,” without relative to talk financial matters. challenges portions point us to out the statement of facts which we conceive specific findings made of fact no supports finding. such a original opinion further than were our necessary raised show that evidence required, course, We are not to do have been duty issues should submitted this. It is of counsel to jury, shows, deference to it know what the statement of facts vigorous, challenging and,, insistence of proper if read it degree we care, they movant in this case that have taken of would have found carefully again rec- very astray. the time to review the go did not far Edwards tes- “definitely position 'Our “on ord and state” tified while was talking questions in the case.” the vital Wagner, “I .also asked him—she com- plained pains through of severe her ab- Unquestioned unquestionable testi- domen, why I asked him she had mony shows time the unde- those. patient livered fetus remained “Q. right, say? All what did he A. He rapidly turned blue and decom- the statement at that time made that some- posing cavity, in the abdominal and that things. times a tumor caused such inflammation, pain, and swelling constantly increasing. testi- “Q. right, go Edwards so All ahead. A. And I fied, appellee and no one denied it. When says, What kind of a tumor you alleged that rendered says, such facilities it?’ He What kind call did she them, available to says, ‘They such services avail- I have before?’ said it was usually customarily able to them are says, tumor.’ prob- an ovarial He ‘That is ” by hospital furnished she has ably what now.’ *13 Ed- gave Mrs. West The evidence showed that Mrs. Edwards an enema and . said, encysted ovary had sev- if she wards’ become was left not better in morning, before, it, she years together with eral and that have to hospital. be taken to the Speaking He tumor, was then asked, had been removed. “What effect did that (the absurdities, many did she enema) of how ovaries answered, have?” He “She had gas be a some in side? there great her left Can a not deal.” So the “gas” part of tumor” in absence of second “ovarial our statement seems to be an empirical ovary? psychological impression made upon the mind of coun- writer expressed by Wagner Dr. opinion This sel’s extended argument. Reacting to the Key, approval Dr. of Olin did not meet the appellee’s effect motion, will, we there- assuming in that Mrs. who testified fore, by process a judicial regurgitation, formerly cyst had an ovarian Edwards had omit and/or gas. emit the been removed' on left side which had tumor did not are with the an abdominal further tube criticized saying for that always. testimony tend to recur on same side tends show that the fetus female, was fully a developed, ready baby, Dr. the birth of the first After parturition for February on 8th. This is to the Edwards’ home was called West also challenged “as any sup- without called attention was .and the doctor’s port in the evidence.” side. Ed- lump or mass in Edwards’ The testimony wards testified: uncontradicted- of Ed- wards, who certainly was deeply interested (Dr. (Mrs. Edwards) asked “She matter, in the is that dead fetus which West) what was in her side. Krueger 'Dr. appeared removed to be an West “Q. wife asked Dr. Your apparently regularly baby; formed if sir, Yes, question? examined it.” A. she feet, had hands and its sex was deter- your might be “Q. And wife that told mined; eyes it had head and pressure which would against the intestines seemed to baby be a normal every way; in n prevent a bowel action? one, that it looked like only the other this No, say “A. didn’t that. She said dead, one blue and was and seemed to be nothing said locked bowels. She it was exactly the same size of the one born alive. any pressure at that time.” about Key, Dr. operation witnessed the baby morning born on the The was which Dr. Krueger removed the dead he called Dr. Edwards testified the 8th. fetus, was asked tell whether wife was vom- night because his West fully fetus was developed or not. He sick, awfully and that so bad and iting nearly said it was baby, a term and was had locked bowels. said she Dr. West ready nearly delivery, quite, not Wagner nor de- Dr. Neither Dr. West there was some evidence decom- testimony, significant' position. and it this nied He testified that he did go that neither them testified fact near the while Krueger After Mrs. had been in operating case. Edwards because put he had not on sterile time, hospital a short prepared the defendant clothes and himself to assist testified that Dr. came operation. Edwards say He declined to been, his wife had car- ectopic room where into the was an fetus. He stated that ried, pack and said to removed was found that the uterus or womb had a up keep the treatment. rent in it. This statement improperly ruled out objections the court followed him outside the room after “I hospital’s made counsel. We think him, her, says, and I asked I he examined it was admissible as of the res gestse. swelling much there?’ ‘What causes so He says, is inflammation there now.' That ‘It Stiles, who was first assistant sur- packs keeping reason we hot is the geon Sanitarium, Lubbock and who ” her, swelling.’ on to remove participated Krueger with Dr. in removing fetus, the dead whose above-quoted shows that clear, positive, and convincing, and has tumor, bowels, toas locked our statement questioned, not been testified positively upon “support inflammation some point as follows: evidence,” but did err in saying gas included on the made an defendants stomach “We incision in the abdominal diagnosis. place cavity in this gallon where removed about a fluid, “gas” pus, cavity, we find word from the statement of abdominal and re- put facts where testified moved dead that Dr. fetus and in drainage.
«15
baby?
nurses,
A.
its
fetus
doctors
and is
“Q.
by a
mean
You
almost
against
appellee up-
conclusive
Yes, sir.
'
point.
on that
We are further of the
baby? A.
developed
fully
“Q. Was it a
opinion that Dr.
pleading,
West’s
when
Yes, sir.-”
whole,
considered as
presents
that issue.
sign of
no-
then said there was
He
n
alleged
She
opinion
she “came to the
testified
further
He
ectopic pregnancy.
that Mrs. Edwards was in need
hospital-
could be
what
there was a rent
ization.”
“Hospitalization”
“plac-
means
*14
womb, and
patient’s
a “tear” in the
called
ing a
person
sick
hospital.”
in a
They are
at that
removed
baby
was
the
usually placed
not
there for fun or recrea-
condition, and
decomposed
in a
time was
tion or to be
by
treated
the scullion maid
days”
long
been dead “some
had
—“a
janitor.
and
purpose
The
in placing a
time.”
person
sick
in
hospital
a
is for care and
by
testimony,
the witness
think this
We
by
treatment
charge
those in
of the hos-
sustains our
point,
qualified upon that
best
pital who, as we
appears
think
from the
quote
to
not undertake
We did
statement.
record in
case,
this
were its doctors and
the witnesses ver-
of each of
evidence
nurses. At
least
tends
batim.
strongly to show that those who cared for
in
this statement
They
challenge
further
after
her
her- hospitalization were the
her rela-
admitted
opinion: “Dr. West
nurses and a doctor
hospital.
that of
as
Edwards
to Mrs.
tion
We
already disposed
of the con-
that she
alleged
patient,
physician
tention that we erred
stating
that there
as an
trouble
diagnosed Mrs. Edwards’
X-ray
was an
hospital
machine
tumor,
brought to de-
her
ovarian
fendant’s
which could have been used and which the
diagnosis and treat-
hospital
appellees failed to use.
It was conceded
nurses, and
by
doctors
its
ment
practically by both
sides
the machine
by Wagner of said hos-
particular
Dr.
objection
was
used. The
that we
her
gave
she
co-
alleged that
pital. She
appellees
said
failed to
hyper-
use it is
history
complete
of Mrs. Ed-
a
defendant
critical. The record
X-rays
shows that
it had
as
been
of health
wards’ condition
by
are used
specially
experts.
trained
by
her
by
related to
her and as
observed
possession
Since the
anof
machine
and her husband.”
Mrs. Edwards
parties,
admitted
both
synopsis of the
think this is
fair
We
could not assume
purely
that it was there
answer is
pleaded when her
consid-
facts
ornament,
but would have
jus-
been
however,
see,
to
as a whole. We fail
ered
they
tified in assuming that
had an ex-
importance
complaint
of this
about
pert,
duty
and that it was the
of the hos-
appellee’s
pleadings, since
contention
pital and its doctors
use it in
this case.
justified the
that the evidence
court
di-
think
the statement as made is cor-
recting
allege
a verdict.
did
that she
She
rect,
change
and we decline to
it or amend
complete history
Wagner
Dr.
gave
any way.
init
Wagner
case.
If Dr.
was connected
They
say
further
that this court erred
hospital,
which the
with
evidence
stating
“that
arrival at the hos-
indicates,
hospital
strongly
then the
had the
pital Mrs.
immediately
Edwards was
taken
history as a matter of law.
institution,
charge
the nurses of the
They
challenge
further
our statement
hospital,”
and carried into the
and we are
brought
West had Mrs. Edwards
requested
point
out
statement of
hospital
doctors and
its
nurses.
any testimony
facts
that the nurses who
good enough
point
are asked to be
We
to
charge of
took
Mrs. Edwards when she
portion
pleading
ap-
hospital
brought
to the
were its em-
pellee
susceptible
which we conceive
ployees. This criticism is frivolous—
placed upon
the construction
positively absurd.
court.
insists that we have
movant
Lee,
accompanied
interpreting
erred in
grossly
pleading
Mrs. Ed-
Dr. Anne West when we
wards and Dr. West
she
stated that
when
first
alleged
brought
patient
hospital,
that she
brought
she
testified that she
hospital
along
and to
doctors
with
its
came
the others for
pur-
nurses.
opinion
baby.
bringing
stated that Dr.
pose
West did al-
She said:
ordinary skill, care,
up
used
lege
pru-
“We drove
to the back
(of
entrance
dence,
diligence
they
to ascertain
hospital)
patients
her
where
receive their
condi-
tion,
out,
having
brought
they
and in
go
where
the and
nurses came
got
put
and
bed
relationship
Mrs. Edwards and
her on this
between defendants to the
jury.
hospital,
and took her inside the
Whether
joint
tort-feasors
baby, or
then
and
got
a nurse came out and
technical partnership existed is imma-
(West)
I
Anne’s
car and terial.
took Dr.
If
Wagner
acted
agent
get
went to
to Mr.
the Lubbock Sanitarium
co-operation
it,
or in
latter
Edwards.”
be unreasonable to
It would
would be liable. There was an effort
made
prove
assume
who came out of
that the nurses
employed
that Edwards
baby
hospital
Wagner,
defendant
took the
failed in this because
and
pital
into the defendant hos- Edwards
from the Lubbock
back
testified that he did
Wag-
not see
ner
were nurses
Sani-
until his wife had been
there for
day
hospital
tarium
in Amarillo or Addis
or a
two.
If
employed by
Ababa,
assuming
one,
justified in
and we are
it was
Dr. West.
It is true
its own
services,
sent
nurses.
accepted Wagner’s
just as
accepted
the services of the
preparing
In
their motions for re hospital and its nurses.
hearing,
ignored
seem to have
counsel
*15
We are taken
task
to
because we said:
may
jury
a
cardinal rule of evidence that
“But we do not subscribe to the doctrine
assume the
of one fact or facts
existence
proof
that mere
of bad results
proof
is no
fact,
may
proof
from
a relative
of negligence
case,
any
and that the is-
indulge all
reasonable inferences from
sue of negligence
experts
one
only
is
to
by the
the facts shown
biased
evidence which un
determine.”
properly
minds can
de
and rational
.
proved
duce from the facts
Associated
appellees
If
any
contended for
(Tex.Civ.App.)
Ind. Co. v. Baker
76 S.W. thing
case,
in this
was for
prop
the two
153; Galveston, H.
v.
(2d)
& S. A. R. Co.
just stated,
they
ositions
cited an ar
539;
(Tex.Civ.App.) 214
Cook
Baird’s
S.W.
ray of
holding
authorities
that no one but
Bakery
(Tex.Civ.App.)
Davis
v.
expert
say
medical
could
whether there
1031;
Cooper
S.W.(2d)
(Tex.
Cotton v.
54
negligence
case
of this kind or
jury may
Civ.App.) 160
597. The
al
S.W.
express any opinion
testify
or
as to what
so infer the existence of one fact from they saw or heard. The
objection
first
ju
other
facts of which
court takes
along this
made
line was
when Edwards
notice,
dicial
even from facts
or
estab
jury
undertook to detail to the
what was
by
lished alone
circumstances. Pink Front
said and done
his wife and Dr. West
Co.,
Bankrupt
A. Mistrot
40
Store G.
&
v.
on the night
parturition.
He started
75;
Civ.App. 375,
Wright
Tex.
90 S. W.
by saying:
out
“After we called her (Dr.
452;
Hawkins, 28
Woods Dur
v.
Tex.
v.
West) she
my
came out there and
wife
rett,
817 relate party. such Edwards’ efforts now, it would might as well settle not a what was done on occasion jury.” retire probably be better with, any or statement transaction as to retired. intestate, by, any testator, statement te>him distantly even which statute proposed did or ward. The arise one any proposition as the squints at such any by Ed out of transaction is article by appellee’s counsel announced 3716, deceased. wards or his children with the against or is: “In actions Ooley Refining (Tex. Humble & Co. v. Oil administrators, guardians, executors, 1038; Simon v. Civ.App.) S.W.(2d) 46 for or rendered judgment in which Middleton, 531, Tex.Civ.App. 112 S.W. 51 such, party shall neither against them 441. testify the others as against be allowed 559, Stevens, Wallace 74 Tex. S. v. by, with, any or statement transaction Wallace, case in which Mrs. W. is a ward, testator, unless intestate or widow, use of the for herself and sued opposite testify thereto called to for dam children of her deceased husband ages article provisions of this party; and the killing of the hus resulting from the actions and include all shall extend to difficulty. personal in a band and father representatives legal heirs or against per plaintiff, objections the court Over arising transac- out of a decedent testify in mitted the defendants to their decedent.” tion with such conduct own behalf as to statements and application whatever This statute has no1 transpired between of deceased and plaintiffs, true that Ed It is to this case. wards and his difficulty. pending them him children, al *16 three minor case, contended, as in this vio they surviving leged are the husband statutory of lated the rule evidence. deceased; Edwards, Vergie and children of exceptions gener to the court said: “The only heirs law of are the at said by the al rule laid down statute above deceased, 11, on March who died intestate not, however, in terms of quoted do 1934; necessity no ad that there was for implication, action, the defendants to this include deceased; ministration estate of on the deny privilege them the of so as obligations; that she no debts and no left by the testifying. This is not a suit heirs plaintiffs independent bring capacity this suit Wallace, of legal representatives or H. J. ly and in the as heirs of the es any deceased. Plaintiff does not sue for deceased, community tate and as of said deceased; any right inherited from for thereof, damages survivor to recover compensation would have been entitled pecuniary against the defendants for their only compensation to. Plaintiff sues negligence loss on account of of the .the the children of deceased she and by what causing injuries defendants of the husband and death have lost Edwards, Vergie death the said and for resulting to them which father, damages — physical suffering and mental of the they are entitled to re the law declares Vergie in her said Edwards lifetime. of their own loss. De on account cover represented in this suit. The is not ceased part Plaintiffs took a nonsuit as to that merely represent and children widow petition sought in which of their claim, upon themselves, their own and sue physical suffering and mental recover for allowed law. We think was no Edwards. of Mrs. testify permitting defendants to error in only as in Edwards could recover they did.” only His children could recover dividual. as individuals objection repeated was made This through their father as next sustained, amount, as shown any, by ly and numerous friend. The if recovered facts, statement of which re community prop rulings in the Edwards would not be depriving appellants erty. community of valu ended with the death sulted Edwards, testimony. is the universal rule and there was no com able of7Mrs. upon been tried munity if where a case has to own the fund recovered. No theory party either mistaken has been right to recover ever existed until her testimony deprived material valu He was neither executor nor ad death. ministrator, rights reason of error on appointed and had not been able such counsel, children, the court or the ends of legal guardian for his so all that require pa'rt plaintiffs’ petition justice a reversal case in surplusage. correctly by any executor, retried. 3 order that it This was not an action administrator, 857; 1226, guardian, par. Waggoner against any nor v. Tex.Jur. 818 pellee’s Co., interposed: object 120 Tex. counsel “We Herring-Showers Lumber 1; (Tex. testimony to that as 605, Hicks more medical from an S.W.(2d) 40 Gibson v. inexpert 691; Anderson v. witness.” The court overruled Civ.App.) S.W.(2d) objection time, Walker, 981. and Edwards an- 95 Tex. 68 S.W. swered: “She than she larger was much motions, complaint In one had ever any been with of the other chil- exceptions were taken made no dren.” be, action, tO' and that seems court’s Then Edwards’ counsel asked him: measure, proof true, positive which is proceeding you both the court and counsel any “Did see or feel movement? theory nothing Yes, said mistaken A. sir. Edwards, -by doctors, by by any of the “Appellee’s counsel: That is medical ladies, Edwards, visiting neighbor testimony lay from a witness. any dam- or in fact one else who objection,” “The' Court: Sustain the testimony, admitted. Act- aging should be and, upon request appellee’s counsel, ex- theory, ma- much ing under this mistaken cluded the answer. by plaintiffs offered terial your was asked: “What was excluded, in virtue wife’s respect condition with as to wheth- hearsay. statutory provisions, but as er swelling she was after she returned job go an interminable It would be home hospital] the defendant ?” [from facts of 175 through this statement He answered: swelling.” “She was great point and recite pages and out “Appellee’s Counsel: a minute. hearsay excluded Just volume of So far as the Hospital West Texas clearly under admissible which was concerned, Dr. Wagner are object excep- is an gestae. This rule rule of res any testimony as to her condition after she pp. hearsay rule. 17 tion to the Tex.Jur.. hospital. left hearsay evidence. Just 613-616. (The assented.) court Ed between A conversation “Appellants’ Counsel: If negligence on was admissible wards and established, their part is it becomes materi- any representative of the whether al as to what negligence, follows the *17 happened pres to be West either I think theory. it is on admissible that proper is tried with ent. If the case Yes, sir, but also that can- “The.Court: application of the res understanding and jury not be considered against rule, deal of material testi gestae great a them at this time.” will be ad mony excluded which was The uncontradicted Ed- mitted, upon opposite tried but it was wards of three of the ladies living theory. of these erroneous account On stayed neighborhood with Mrs. developed, ,fully was not rulings the case Edwards was that her abdomen com- reversed for reason. and should be menced to swell within a few hours after theory which fre erroneous Another delivered, the first child was it never quently throughout the trial was prevailed stopped swelling, some of the witness- testify any lay could to' that no witness being very es described abdomen as her of medical mat which even smacked fact tight and swelling hard. She was instance, Dr. West had For after ters. time she reached the defendant patient should be carried decided that left, notwithstanding until she packs, hot came over to1the Ed she hypodermics, galore. and enemas If she inquired of Mrs. Ed wards home home, continued to swell after she returned you go decided tO' : “Have to wards clearly admissible as throwing light “Yes, replied: Mrs. Edwards sanitarium?” upon charge that the defendants had go,” and Mr. Ed I had better I think her, properly not treated and comes un- talking as to where said: “We wards questionably within gestse the res rule. her.” we would take Speaking again appel- of absurdities — then asked: Appellee’s counsel “Who objected lee’s counsel to Edwards’ state- you talking are about?” appeared to suffer great ment replied: my- “Dr. West and Edwards pain complained all the time. He fur- my wife.” self and objected ther to the statement of Edwards question draw, Then this was asked: that she suffered so hands would “Just that, your every they gave to state time getting about and vomited her wa-
before eat, compared anything enlargement as to the ter or and that she wife’s could delivered,” ap- anything retain on her stomach. other children she not that, his average juror The after to be Edwards stated does not have When that, told if the Sanitari- tumor in pregnant wife was carried to the Lubbock a wo- kicks, Krueger, tumor, man he need operated upon by Dr. it is not a and was nor does um he was expert describing that, what tell present, him a and in when “They woman pregnant is doing he said: the doctors were two children long near the womb ruptured, has been rupture incision about inches made an six pump pus causes, not due especially to natural her navel and commenced after pressed the doctor objected has from her.” This on her and along not know the line of the did ground witness womb. While some was, and, if he of the ectopic asked doctors testified preg- when what knew, corrup- nancy very rare, he said it was form failed tell a jury “He the that in Appellee’s counsel then stated: cases the tion. those knowledge torn, wall of expert. His the uterus has medical been one fetus is not a non-expert was found opinion witness.” out in the lay abdomen with the is the placenta full of an excessive amount of made the statement further uterus, blood which ruptured indicated a out that, pumped after the doctors pus this blood was mixed with “down pus, reached gallon Krueger matter, and, fecal pertinent where facts said, patient’s abdomen) and (the in there appear like these in a the ex- case and baby,’ took is another ‘Here perts means, fail to jury tell the what it hearsay objected This was out.” statement, surely jury should be allowed to exer- getting and because it was cise their own common sense. If it is not medical before witness’ rule, it should be. so properly qualified without average juror certainly has sense objection was sustained testify, and this enough to know that where-there is vomit- from the was excluded and the evidence jury. nausea; ing that, there is where a dead decomposition fetus has turned blue and instances few These in, has set it did not die in the abdomen from the statement culled we have hours; within the last few where case holding our sustain facts to there is no evidence of ectopic pregnancy, tried, fully developed, was not womb, rent is found in the wáll of the theory, up- only upon one mistaken and one twin is in the womb and the other tendency of the courts several. on abdomen, is out in the unborn did babies rule. These liberalize the enlarge and open not tear the womb. require tous alone would considerations Edwards was asked if he was remand the judgment and reverse present when Dr. West made an examina may have plaintiffs case in order *18 tion his wife to determine her condition developing the facts. opportunity of fair and form an idea what time she would likely give birth to a He child. said that holding in error was, but did not know whether the ex witness, only expert or in oth an not that er words very thorough amination was or not. He doctor, testify in cases of can pressed said that Dr. West her hands on negligence, what constitutes to sort as this but we wife’s abdomen along his line the out cited in our the Texas cases think womb, the and at that time his wife contrary. Cer opinion hold the original tainly going thought pains. she was into labor kindly anxious husband an certainly -pertinent, is This testify women can whether neighboring jury permitted should have been the pa or left in the mass knot was a upon the consider it issue of when the the first after the birth of abdomen tient’s ruptured. was uterus be allowed to should think child. We West, Edwards, wife, yellow neigh- skin was after she his her Dr. testify that home; groaning expected who visited her that from her women all bor back came they knew she was suffer of twins. Within an hour or the birth appearance swelling baby from the birth of abdomen was after the first the two ing; “knot,” “mass,” “lump,” al “tumor” day. (as If the is not or husband day to variously called comparative witnesses) size the the was state lowed previ region last and of where the left moved abdomen wife’s formerly cavity ovary was located down into the of this sort pregnancies, ous doctors, pelvic and rested then the on the left side elicited from only be can womb; patient’s the side of changed the better. rule sooner X-ray photo- ruptured. diagnosis of this case an which was the womb t'lie wall Yet it is tified in tak- jus- graph have been was of this should that Dr. West insisted en, physician did the mere fact that one ovarian was another thinking- it testify X-ray photo- taking of an ovary been had left knew the tumor. She proper practice, graph that time. would have been prior to years removed several fact as acquired was raise the issue of sufficient to Mrs. Edwards Did think not, the to whether or the failure to use then not ovary? If left another X-ray negligence.” was Dr. West concluded jury might have ‘ wheth- failing to ascertain negligent in was interpretation said This correct. We baby expected No. lump er was the that and more: When it was shown dead or alive. it was whether X-ray more than the use of the probably would have disclosed the nature gave Dr. that she shows The record fetus, lump, and a dead patient soon shown that was history of the Wagner a full so-, necessity doctor then there was no for a hospital. If after her arrival at ovary say left that the failure to use Wagner knew then Dr. had been removed lump negligence. jury And think the could and that the encysted! left would have so possibly held. be a second not ovary. connected with If Dr. They insist that this have been law, then, matter of as a permitting jury “speculate” facts, the these knew it. Under practice good diag- what is or is say permitted to jury been should have nosis, expert physician and that X-ray and whether the failure to use “speculate.” could If so there had been lump was nature of the ascertain the exact speculation by little more the doctors with negligence. lump prior reference to the nature of this whether in the motion We are asked patient, Krueger the time Dr. saw the mere fact that West we hold that the to-day. possibly she would have been alive Wagner failed to discover and/or Dr. Shortly seeing patient, after he said that de- child, failed to and therefore second liver the second operation necessary. an abdominal It child, is in itself suffi- appellants is clear from the record that submission cient to warrant-the handicapped during trial or not these as to whether issue physicians testify reluctance with of. negligence. Under guilty doctors were reference to It is a matter of common mistakes of other doctors. shown, that is other circumstances knowledge exactly hold. what we rule, “professional have a known as “hopelessly courtesy,” which insists is endemic in the medical Movant that.we profession, we hold that the issue of and with reference to this case in error” when particulars epidemic the it negligence in several .under seems to1have become an questions vicinity badly this case were and was overworked. evidence in jury, prominent and insists were eleven be submitted to There doctors listed fact to hospital’s stationery, witness must first on including that some medical Wagner, witness stand that either and from none of them testified from the in treatment, both, West, diagnosis sound ever heard. Even Dr. question malpractice, patient, charged the doctors in ei- was and a wo of this ther did man, chirp. something recog- which it is not failed to was shown *19 practice Krueger way good in cases of this was on his to Fort nized as character or something failed to do which Worth while the case tried. required good exercise of is characteristic of such would be practice unsatisfactory To it so uncertain and in this character case. is adopt practice gained rule as the exclusive little information be from However, repeal would be to that arti- it. Dr. Stiles is a ex in such-cases notable ception, guar- Key, which and Drs. Clark and state Constitution on ac cle of our every unfamiliarity litigant right of trial count of with the antees to facts juries case, give would convert in such the not able to in jury and much stamps. account, No formation. These rubber would circumstances cases into measure,'for plain in some needed. failure of fully case, develop tiffs to their and re say: They interpret “As we further quire reversal and remand. opinion, notwithstanding the Court’s fact physician interrogatory propounded is testified that the ex- This to us that no attorneys: ordinary Anne ercise of care and skill in the West’s “Was under time, while Mrs. Edwards ever at West, physically Dr the observation upon? operated able to be pain nerve-racking physical, Tf intense suf- the intense and/or if debilitating, hypodermics the use of fering incident to being tormented syringes and rectal vitality, patient’s packs hot lowers patient’s presence in the and/or if the decay- uterus and a lacerated abdomen must patient ing fetus lessen necessarily tend to absorb toxin resistance, swell- and/or if the powers of day day increasing from ing was hourly, growing worse the inflammation say the sooner unhesitatingly then we the better rotting fetus is removed be, recovery patient’s chances of the physician and, was the first since Dr. West (cid:127) think charge, performed operation have been should observa- Dr. West’s while she was under tion, hold. and so Krueger was inadvert- of Dr. The name opinion original instead
ently used be- Key. probably This resulted of Dr. “Dr. notes read stenographer’s cause the K.,” transcribing it was written “Key.” original "Krueger” instead of par- in this opinion therefore corrected
ticular. never to discuss the make it rule necessary dis- than is further issues, dis- nor would we have pose of the fully in this case as we have cussed it as unjust challenges criticisms
but for the insistence counsel their hurled at us that we do so. unnecessary to discuss the other two It is
motions, disposes what we have said since questions raised in the of all material They are all three over- three motions.
ruled. v. BOYD. LIFE INS. ASS’N MUT.
TEXAS Sheehy, Richey Waco, & appel- No. 1646. lant. *20 Appeals Texas. Waco. Civil Court of Street, Waco, E. appellee. C. 5, Dec. 1935. 1936, Rehearing Denied Jan. GALLAGHER, Chief Justice. by appellee, was instituted This suit Boyd, against appellant,
Alberta Texas Association, Life Mutual Insurance a cor-