*1 clerk, or that the trial part rulings to on judge refused endorse his RAMON, Petitioner, objections, or to affix his the written v. thereto, signature or official having after been objections, written al., Respondents. MANI et Paul presented judge, to the endorsed timely No. B-5769. him, mislaid.” signed lost or at 391. Supreme Court of Texas. amendment, expressly its Rule before good cause was an excuse for provided that transcript of a filing the late statement prepar made a clerk in facts. Errors or statement of facts have
ing transcript good and ex held to constitute cause
been filing. Parker Wigington
cuse a late Bank, (Tex.
Square S.W.2d 334 State 1959, writ); Worth An Civ.App. no — Fort Richardson,
zaldua Antonio n. r. Civ.App. — San ironic for
e.). It would be this court to hold necessary Templeton to com
that it was of the district re
ply with the rule request for the amendment
quiring clerk, to the court but then
be submitted no relief when an error of Templeton
afford appellate review of the prevented clerk prop hold that where
amendment. procedure for a district filed rules
erly the clerk of the court is provide that
court judge to the for his submit instruments
to failure clerk to of the
signature, instrument, thereby submit
promptly timely filing signed
precluding the court of civil with
instrument appellate review of the prevent
will not to the filing. due late
instrument civil improperly Templeton supple- to file permit
fused to transcript containing his motion
mental sup- filing of
a trial amendment. transcript so permitted should be
plemental appeals can consider
the court of civil trial amendment.
merits ap- court of and the cause is remanded
peals is reversed court.
to that *2 (1) jury found: that Dr. Mani left a in
sponge retroperitoneal cavity, Ramon’s so, (2) negligent doing (3) but he was not in have X-ray presence would revealed the an (4) Dr. Mani sponge, the failed to make of was X-ray, negligence which and a prox- an (5) of injury. imate cause to find that the scrub and jury refused in the circulating operating nurses room surgery were Dr. during the Mani’s bor- (6) but did find that the employees, rowed make a sponge nurses failed to correct count, (7) employ- and that the nurses were hospital performance ees the in the of of counting sponges. of the act Plaintiff ob- court’s jected to the trial failure to submit inquired about the neg- which nurses’ issues ligence cause. of civil disapproved The court the Doscher, Rhodes, Heatherly, Chalk & A. ship captain doctrine that and held Chalk, Abilene, and John Allen L. Rhodes liability Dr. Mani’s for negligent the con- petitioner. for was, evidence, the nurses of under duct the by the Davis, Rose, Hofmann, borrowed Smith, Finley determined servant rule. & however, of civil Texas, The court Finley, Angelo, Mar- George S. San versed the the Abilene, remanded respondents. for Sprain, vin S. trial cause for another since the trial court refused to submit issues the concerning POPE, Justice. negligence cause. D. Ramon sued Dr. Paul Mani and 535 S.W.2d Memorial Hospital damages Hendrick granted the writ of error This by sponge caused that was left in his granted at the same time it in this cause following operation. abdomen an Plaintiff Sparger WorleyHospital, the writ in took a non-suit against hospital Ramon the (Tex. 1977). cases, In both settled the against by pay- after it claim it question surgeon central was whether a the 10,000dollars, ing Ramon but Dr. defendant of an operation conduct in the oper in the brought hospital Mani back into the ating room is liable as captain ship by third-party jury case action. The though may be that of a even damages that Ramon suffered in found employee who is not his person his bor 42,300 sum of dollars. The trial hold- Our decision servant. in rowed ing that Dr. Mani was entitled to contribu- captain rejected ship doctrine against hospital, judg- tion rendered that an holding operating surgeon’s vi our 21,150 ment that Ramon recover dollars liability must carious be measured Mani. Dr. appeal. from Dr. Mani did not common to employers. standards other Dr. appealed, insisting Plaintiff Ramon solely jury was liable in Mani this case found operating room under the nurses were not Dr. Mani’s the nurses borrowed captain ship, known as the were employees doctrine servants but instead the plaintiff hospital. was therefore entitled to Without restating and that the evi dence, jury the full amount of Dr. those answers find support recover did insisted that the nurses were not his evidence. Ramon also insists that Mani he employees hospi- judgment against but were entitled to a employees Dr. jury Mani for the full amount of the tal. find prove Dr. Mani failed to ing, since that the joint hospital was a tortfeasor. Ramon ob Thomas LANDERS, Appellant, Edward charge to the court’s
jected because there were no issues submitted inquired which Texas, Appellee. The STATE of nurses, whether the as the hospital’s em so, ployees, negligent and if whether No. 51979.
such was a cause of Court of Criminal Appeals of Texas. The court of civil ap 5, 1977. ruled that the peals proved cause were not as a mat Opinion On State’s Motion For of law and it ter was for that reason that Rehearing April 20, 1977. remanded the cause for another Rehearing Denied May trial, citing support of the remand Prae torian Mutual Life Insurance Co. v. Sher
man, 455 201 (Tex.1970). S.W.2d affirm of the court of appeals. JOHNSON, J., D.
SAM dissents.
YARBROUGH, J., sitting. not He was
not a member of the Court when the cause orally argued before this Court. JOHNSON,
SAM dissenting. Justice
This dissent is respectfully submitted.
As set forth in this dissenting writer’s
opinion in Dr. C. F. v. Worley al.,
Hospital, Tex., et S.W.2d date,
handed down this same this writer
would retain the historic position of this represented Krchnak,
state as by Harle v. App.
[1st Dist.] (Tex.Civ.
McKinney Tromly, Ap p.— yler n.r.e.), T operating surgeon
hold that an lia may be any negligence occurring op
ble for
erating theater.