*1 YTCA, рoint is Defendant’s Texas Business and Commerce Code overruled. the statute of
which sets limitations as four Affirmed. any contract of years Big on sale. D Serv Company, Industries, Inc. v. Climatrol
ice Er.Ref., 148;
Inc., Tex.Civ.App., 514 S.W.2d Browning Company, Arms v. Tex.
Wilson Er.Ref., 501
Civ.App., S.W.2d 705. shows that evidence as of December
29, 1971, $3,749.21 plaintiff defendant owed account; open 1, January
on that on 1972 a al., Appellants, Robert WEBB et opened new account was for defendant on books; plaintiff’s that thereafter defendant al., Appellees. goods purchased payments; and made Dr. Kenneth L. et JORNS payments defendant were credited No. 17615. account; plaintiff on the new and that on Appeals Texas, Court Civil 23, 1974, defendant September owed Fort Worth. the new account. $125.00 10, Oct. 1975. The evidence reflects than that more charged original open $8000.00 Rehearing Denied Nov. 1975. April 11,1971, between and Decem- account Rehearing Denied Dec. 1975. 29,1971, bring ber account balance to foregoing None of $3749.21. four-year statute of limita-
barred
tions. request was no testimony
There as to crediting defendant for a method of account, original open on the
payments plaintiff testified
the President there request.
was no such account open
Plaintiff credited the new paid moneys
with all defendant after 1, 1972,
January which left a balance of
$125., which defendant makes no com-
plaint.
The rule is in the running case of
accounts, where there are various items of side, and
debt on one various items of credit side, occurring
on the other at different
times, and no direction application
payment debtor, has been pay- made applied
ments on the account as a whole are unpaid portion law to the oldest Surety
account. Aetna & Hawn Cas. Co. v.
Lbr., Co., 460; 128 Tex. 693; p. Berry-Barnett
Tex.Jur.2d Prowell v. Co., (Waco), Er.Ref.,
Grocery Tex.Civ.App. attorney’s is not excessive. fee $2000. *3 preparatory to surgical intended
operation repair a diaphragmatic hernia. thirteen Approximately minutes after begun the anesthetic was time when to be Irys Eakin, the defendant administered anesthetist, it was discovered that Mrs. cyanotic and thаt a cardiac ar- Webb was it rest had occurred. other words discovered that Mrs. Webb’s heart had stopped functioning in that there was no doctors, Eugene heartbeat. defendants Rhem, Holloway John H. Hollo- & Jorns, and Kenneth L. attempted Olcott Houston, appellants. way, *4 The attempt resuscitation. failed and there Munn, Gooch, Hanger, Cantey, Cravens no reversal & of the cardiac arrest. The Griffith, Worth, pronounced L. Fort for and Richard dead. The materi- Jorns, M.D., upon cause(s) Kenneth L. and E. appellees, al issues Olcott, M.D. if delay, D. cardiac upon failure and/or any, discovery, in its or impropriety and/or Brown, Peebles, Crowley, Simon & insufficiency in efforts. resuscitation Simon, Jr., Worth, Fort ap- U. for Richard Irys Eakin and Dоctors General pellees, physi- Dr. Jorns attending had been the Hospital. prior to the time cian of Mrs. Webb’s deci- undergo surgery.
sion to Dr. Jorns ar- ranged perform with Dr. the sur- Olcott to OPINION gery, pres- he to act as assistant. Thus MASSEY, Justice. Chief operating ence of these two doctors in the appeal plaintiffs in mal- This is an on the material and their room occasion wrongful suit for death from a practice efforts resuscitation when Mrs. Webb’s nothing judgment based take Operative proce- cardiac arrest occurred. doctors, verdict in favor of the defendant dure, preparatory other than for measures hospital. anesthetist administering anesthetic, and the of the begun. never We affirm. previous history. aрpellate The has case sought theories, recovery upon Plaintiffs Jorns, Webb v. (Fort See negligence 1. on part follows: as of Dr. 1971,
Worth, Tex.Civ.App., reversed at 488 there was decision to before resort to Olcott Court, 407). By Supreme preparations therefor surgery and made in remand to the trial court. there was failure to obtain the area informed con- appeal retrial. On the instant from surgery (including for the anesthesia) sent agreed appeal this Court the trial prior disclosure of full hazards with necessarily directed was correct in that verdict court’s incident, coupled culpable with actual con- prima facie plaintiffs’ evidence no by the representations duct the necessity proved; with which conclu- had been case 2. surgery; failures part on the of Doc- disagreed and held Supreme Court sion the Hospital General to have tors an adequate to a case should be submitted program training procedures necessarily for decision. administering incident to the of anesthesia, decedent, an adequate and to have October electrocardiograph Webb, available for operating was in the machine J. immediate Mrs. Ella use inci- (at surgical thereto and to operating table dent procedures; and on room 3. negligence on Doctors General Hos- of defendant premises Eakin rela- failure to Worth, Texas) act tive receiving Fort pital circumstаnces inquiries We list the material required preparation for administer- made anesthetic, special giving actual charge, issues in the court’s with the negligence in special and/or the form and move- numbers importance issues of take; negli- by parentheses. action she ments of the did indicated part of both gence on the Dr. Olcott and Dr. On Dr. (1) Olcott: Did he fail to advise them, Jorns, either of in connection and/or Mrs. Webb of the risk of fatality in connec- failure to use an electrocar- negligent with proposed with surgery tion and anesthetic diagnosis, machine for to adminis- diograph (4) fail procedures; to advise her of the drugs, medicines or ter certain check the radiologists’ interpretation of X-rays prоperly place esophageal patient, to stetho- taken, as reflected X-ray reports efforts, scope, to continue resuscitation records; hospital fail to advise that massage. to administer internal heart if symptoms, any, her to a diaphrag- related against found hernia, if any, matic could be treated medi- issues, thereof, liability or all the sets cally appropriate drugs, and that the properly more rather it be said suggested hernia surgery was recommended refused find for the on solely on her election to surgery have the if issues. their symptoms were in her “suffi- applied The same is true as to the dam- cient” that she did not want to live with age all of issues. On them the found Further, them. refused to find *5 and reрresent zero dollars cents to the loss (7) that Dr. Olcott advised Mrs. Webb that husband, occasioned her death to her her if she surgery did not submit to she children, parents, and her all of whom had strangle Further, choke or death. joined in the case. From the (11) Mrs. jury found that Webb was suffer- record we have concluded that most of large diaphragmatic hernia, from a and (Points constituted error. these answers Dr. (11-A) Olcott’s that statement that she 70-75, incl.) The error error an- suffering from such was a condition was swers would not constitute reversible error true. not if there was reversible error in jury On Doctors Hospital: jury General The findings liability. Here there was (16) find refused to hospital failed jury failure or refusal to find the adequate an have training program of negligеnce, and, any fact of defendant’s room personnel operating physi- and staff purpose inquiry a where for failure on permitted perform cians surgery, and to part defendant was assumed and procedures train them standard in the questions negligence asked either as to event a should respiratory suffer or proximate jury or cause the refused to find problems during cardiac proce- anesthetic negligence proxi- that such constituted or a surgery. dures or jury The refused to find (or mate cause of Mrs. Webb’sdeath cardiac (19) hospital failed to have an arrest). liability findings (or Such refusals electrocardiograph machine available for plaintiffs) for the to find attacked in immediate use in thе operating room in the In most ways. two instances con- problems. event of cardiac tend that the state of the evidence in the a is such as matter of law the record General: The jury (45) refused to find answers returned respiratory or problems, cardiac or compelled; in all instances their both, experienced by Mrs. Webb in the op- is that the answers were so con- contention was a proximate direct or erating room great weight preponder- trary to the and result agents. of an overdose clearly wrong. evidence as to be ance of the On Drs. Olcott and (either the record and Jorns We have examined hold the upon surgical both) preparation jury’s for opera- verdict undеr attack made up to procedure to be without merit. tive after time of either contention a failure apparent death of failure of refused to find Mrs. Eakin because efforts to which there maintain resuscitation was re- Mrs. Webb’s observation of pulse rate, Upon purposes pressure, “failures” assumed for signs sort: blood and vital special inquiry anesthetics, refused to find during (57) induction or proxi- failure, and also refused to find negligence any, if Mrs. Eakin’s negli- (22, 25) (58) cause 24 and failure mate that such negligence, or gence, any, if electrocardiograph use the machine for proximate cause of death. was a other problem of the cardiac diagnosis under the by the of a submission the fact where issues circumstances; (26 27) refused to part on the of Mrs. of “failure” character negligence the failure to find administer Eakin was assumed refused to find bicarbonate to Mrs. during sodium Webb (50) in the use failure to negligent her efforts; (29 30), resuscitation (2 gasses carrier flow of liters of four-liter to administer Adrenalin (Epineph- failure oxide); 2 liters of nitrous oxygen and rine) drug cardiotonic or other to Mrs. proximate to find cause Mrs. refused efforts; during resuscitation and/or Webb (51) failure to Webb’s death use (32 33) in the failure to administer gasses (2 four-liter flow carrier liters of massage. internal heart refused oxygen oxide) liters of nitrous (14) Dr. Jorns failed to obtain to find continuously. Halothane Where there pro- Mrs. Webb’s informed consent for the assumption of some like chаracter of “fail- surgery procedure. and anesthetic posed of Mrs. Eakin in other ure” jury refused negli- to find Dr. Olcott refused to find her special issues (55-A) failing place an gent esopha- by (54) esopha- negligent place failure to an stethoscope in geal Mrs. Webb to continu- stethoscope in Webb to continu- geal ously patient’s heart functions monitor her heart functions in a ously monitor (48) surgery; thoracic or in in a scheduled surgery thoracic failure scheduled failing to continue the resuscitation efforts furnish Mrs. Webb ade- to have someone period past the of time involved in such *6 by timely properly mash- quate oxygen (41 42) jury efforts. Further refus- (bag bag on the machine anesthetic that Dr. ed to find Olcott and Jorns failеd patient) time of feeding and between the lungs discovery after to check Mrs. Webb’s injection milligrams of 250 the initial that cyanosis of her to determine she was necessary and the time Pentothal Sodium receiving proper oxygen. ventilation and change Eakin to the I. V. to the for Mrs. foregoing: applied to Dr. Jorns On the as arm, administer additional patient’s other special inquiry no relative there was issue adding Pentothal the moderate Sodium failure to continue resuscitation ef- to his Anectine, and then returning to the drip of forts, place esopha- to his failure to an nor bag feeding machine resume anesthetic stethoscope to continu- in Mrs. Webb geal oxygen. Further, jury patient her heart in her functions ously monitor find matters of fact that Mrs. refused surgery. By jury an- thoracic scheduled place failed to (35) properly the endo- Eakin point there was an this swers noted to tube Mrs. Webb’s trachea so as tracheal liability of all defendants other acquittal of adequate efficient ventila- to maintain Mrs. Eakin. than lungs were while anesthetics her tion of administered; (36) that she failed being (52) the found By Mrs. Eakin: On adequate ventilation and efficient maintain continuously mo- Mrs. Eakin failed to “bag she was lungs while of Mrs. Webb with a stetho- the heart of Mrs. nitor (controlled respiration) feeding” after commencement scope (37) discovery cyanosis; of her prior to with the en- prior to intubation drugs and lungs to check after Mrs. Webb’s she failed tube, (53), conditionally but dotracheal receiving intubation to determine if she was submitted, refused to find oxygen; or proper ventilation By (56) the negligence. failure was such lungs she failed to check Mrs. Webb’s after judgment its court is deemed to —the discovery cyanosis to determine if have found answers They say thereto. receiving proper findings she ventilation and implied of the court there was oxygen. negligence proximate neither cause of plaintiffs’ injury even if the jury erred By such Eakin was answers Mrs. finding upon fact which negligence acquitted legal liability. proximate cause inquiry was condition- special No issue was submitted affirm- ally They say submitted. that where there ative answer to which there have complaint preservation is no thereof on agеncy found an any been of Mrs. Eakin for presumed finding the conditionally sub- principal (under other defendant as a doc- mitted issues the finding presumed will respondeat superior) trine of though evi- support stand in judgment. They dence in the record reflects that a fact issue Issues”; cite T.R.C.P. “Submission of had raised thereon. been Noted is the fact Little Rock Dunn, Furniture Mfg. Co.v. Jorns objected that Doctors and Olcott 197, 222 Tex. (1949), charge the court’s because of the absence of and other cases. issue, thereby protecting an such them- selves, but that made no similar We have complaints considered the objection. Neither was there submission of plaintiffs where points their contend an- issues might have against swers returned great right established tо recover under the preponderance weight and of the evidence. theory ipsa loquitur. appeal of res On reject We the contentions of the defendants complaint there is no directed to ab- character that such of complaint can not be special sence of issues. In a considered. “three-issue submission” (or more than such number) where there is We take occasion to note that de conditional special submission of issues di- insist that we obliged fendants to disre rected to be answered jury only gard complaints by plaintiffs find returning the finding fact of certain char- ings against (or them refusals the jury issue, acter to which necessity for them) were to find for either additional answers is made to weight great preponderance there is depend, no authority any pre- that the contrary evidence or find finding by the upon any sumed an- ings were established as a matter of law in swer to issues conditionally submitted in there instances where was conditional sub *7 Rule special additional mission of issues not an instruction of by swered the in the appeal Where on propriety there is to charge. Defendants contend that such is the complaint by sustain losing the party sues, jury unanswered because the was in jury finding against that the upon him the only structed to answer in they the event upon issue which others conditionally (or “Yes”) had found affirmative to submitted is so contrary great weight to the preceding, the issue or issues should be prepоnderance of the evidence as to be to have been by deemed answered the court erroneous, clearly prejudice there is no to support manner to judgment. in the complainants’ right the to have reversal words, any other the say defendants because unanswered issues condi- failure part tionally where there is on the of the submitted. If reversible error is by jury plaintiff appear jury to find fact desired a finding made to against weight in preponderance so that obedience to the court’s direction great of the they reversibility answer do not another or other issues is not evidence to be deemed conditionally merely submitted and thus to be an- waived because there was no re- only jury jury event that quirement swered that the conditionally fact, find the issues support should first then—in be submitted answered. Complain- instance, except In no for the obliged to have attacked the the record. ant is not ever findings conditionally upon submitted or to have damages, issues do we find the an- a submis- to requested contrary different form of returned have been ever swer to the LaMark, v. 555 great weight preponderance sion. Strauss of the evi- 1963). (Tex.Sup., Findings dence. damage on the issues are previous- immaterial in this case reasons Court, Supreme v. Strauss ly stated. LaMark, writing upon an instance Appeals verdict, the Court Civil had held where good The trial court received a jury of a which refused to the answer find upon of which it thе basis judg- rendered of the fact for which there existence was ment. by plaintiff a to have been con- contention Following the return of the ver trary great weight preponder- proceeded dict of the court to read of the evidence. There had been no ance present questions to all and answers conditionally returned to the sub- answers There was a returned. total of more than issues. was instructed to mitted (Plaintiffs these. 63 of obtained submission only in the event there was a answer these special every they issue desired this contrary answer returned to that issue case, apparently in language chosen they were It conditioned. would them.) By the time the court complet had that the same seem evident reading question ed and answer apply returning rule would where an an- Special Issue No. it should have been proximate cause swer to issue was made apparent plaintiffs, probably finding negligence. depend acquit apparent, that the verdict would apply rule would not where it is the Such Hospital Doctors General and Doctors Ol appeal contention on that the liability, probably and Jorns of eott the answer returned estab- acquit would likewise Mrs. Eakin. At this evidence in the record as a by the lished stage plaintiffs that they announced of law for under the contention matter taking a non-suit. If allowed claims of not, necessarily, be there would need for case, all except minor conditional any supplementary submission. Webb, of Mrs. subject children would be would be “waiver” failure Hence there any defeat in suit subsequently brought the conditional sub- complain because of limitation on pleas de The unanswered issue would there mission. who wish to advance fendant such. regarded having been answered support court in such manner as The court denied motion Casualty and
judgment. Bell v. Aetna Because of they this claim non-suit. revers- 830, 834 Surety Company, 394 S.W.2d By 164, “Non-Suit”, error. T.R.C.P. ible ref., (Houston, Tex.Civ.App., writ n.r. may plaintiff take a non-suit in a case Bailey, 471 e.); Williams time before the has retired to ref., n.r.e.). (Waco, Tex.Civ.App., writ By its verdict. authority consider inherent holding that there has been Hence our in the exercise of the court of its discretion *8 by plaintiffs theory the waiver under thereafter taking allow the of it non- contrary by answer to found the point to the up in jury’s suit time when the compelled as a matter of law jury was accepted. been has v. Al- verdict Albert holding at the same time there was while bert, (San Antonio, 772 377 S.W.2d Tex.Civ. pre- where the contention is that no waiver ref., n.r.e.). writ the ver- App., Here findings fact to the liminary yet returned but was not dict had been preponderance of the evi- weight and great Anyway the accepted. motion for non-suit dence. after the made retired to consider was by and this was the time which its verdict have, appeal, the instant tested
We on must have plaintiffs moved for non-suit if jury by of the the evidence in every answer
855 questiоn of the in of ble causes condition will be it as a matter they were to entitled to assist evaluating often right. trier of fact in evidence; per other that if the witness be provi- claim further Plaintiffs to state his only mitted in terms of No are unconstitutional. sions of Rule probability there be op would not medical are unimpressed. is cited. We authority to decide the case the sub portunity on provisions rule and its constitu- We hold the than the form stance rather of his testimo plaintiffs’ claim of error tional and overrule testimony ny, on possible and caus of their non-suit. in the refusal malady by the expert witness es of of di points Further error are be admitted into should evidence before the by to the manner which trial was rected fact. of The rule of trier “reasonable medi particular conducted, rulings of in by expert probability” testimony cal relates thought which be the court evidence to showing sup to must to be made to improper and inadmissible allowed port ultimate issue fact and not the placed before defendants expert testify. standard which the must case, and to of the rulings in the court plaintiffs present it, As pur- ‘sole “The which there exclusion of evidence pose’ Defendant Olcott and Witness Ice plaintiffs desired to have before the which enumerating ‘possible causes’ of particular is jury. the latter there com cardiac On was to detract the jury quali- from arrest plaintiffs right denial to plaint of the (plaintiffs’) opinions in exрert recognized for causa- to medical texts fied use interject ‘speculation tion, con- purposes impeachment in the cross-exami jecture’ jury’s deliberations.” To a expert of defendants’ medical wit nation representation correct, is point plaintiffs’ nesses. “speculation term though conjec- overruling plain- Did the trial err in improper Lenger, supra. By is ture” objections tiffs’ to answers Dr. Olcott testimony of Lenger the Olcott Doctors Ice, expert, and defendants’ Dr. relative concerning possible Ice causes of cardiac possible general? causes cardiac arrest in general specific arrests and/or in the subject Error because thereof is the of сom- Mrs. case of Webb served purpose plaint plaintiffs’ Points Error 76 and assisting jury to evaluate the evidence They testimony maintain that the from plaintiffs’ opinions expert witnesses. should have doctors been limited to the properly It was admitted for this reason. probability medical for the cause of cardiac Webb, case of de- arrest prior (473 opinions To be observed in the ceased. Furthermore maintain 407) perhaps the testimony that the received over their ob- premise strongest belief that jection speculation conjecture mere exists in liability this case lies in their con- must experts since limit their remarks that there was mismanagement tention probability, medical and that their testi- supplied the oxygen the anesthetic and/or mony basing upon in- they were inferences prior and administered Webb ferences. discovery of her cardiac arrest. That was in both the Physician’s Hospi the contention first and the Lenger General trial. On instant tal, Inc., (Tex.Sup., appeal second 455 S.W.2d 1970) actually er contention of the it was held constitute “oversupply” of Halothane in the expert ror to to allow an refuse medical to Mrs. testify concerning possible administered Webb—because of an witness to agents it, “undersupply” physical malady of a causes of a *9 including oxygen, other anesthetics who lived. The rule should be the same as was ad- ministered—at a applied who died. The time when the to one court held administer- testimony concerning ing the total expert possi the anesthetic should have been it of the witness would not be mission as increased to a “four-liter flow”—amounted proximate original negligence something, cause of evidence proving to but consequent failure impeaching merely cardiac evidence applied as given testimony original the by death. the witness thereupon it conceded who be his “au- Ice, expert Dr. By the time defendants’ thority” authority”. to be “standard witness, gave testimony already his it was manufactur- in the record that the disclosed great There are many a medi- texts by the which the er of machine Halothane practice expertise cal in the field of comprising (as a mixture preparation and both administration of anesthesia) was administered recommended anesthetics and in the field fail- of cardiac agents “four-liter per-minute flow” of the a ures and procedures resuscitation to which incorporative of the Halothane at mate- there should be resort in the event of its Eakin, Testimony time. from Mrs. rial It was use texts of such occurrence. anesthetist, was that she never adminis- attorney plaintiffs’ attempted or increased as much as tered rate to a some of impeach defendants’ medical ex- flow”. “two-liter as perts, Particularly well as Mrs. Eakin. was the effort to be observed in the in- not From sources left other plaintiffs’ stance cross-examinatiоn in doubt of the manufacturer’s recommen- any- Ice who refused to Dr. concede that in doubt that medical nor dations thing written was considered him to experts deemed such recommendations to “authority”, acknowledg- proper practice though medical and a constitute constitute improper pro- reading” as that much therefrom such written “worth deviation malpractice. as to amount to and to be taken into cedure consideration medicine, practice the issue was raised. However other words in the view permit physicians court refused to use of man- of some “au- himself—was —not impeach ufacturer’s recommendations thoritative”. Dr. testimony of Mrs. Eakin and Ice. mayWe judicial take notice manufacturer, probably corporation, a there are medical and experts proved event someone not but field, medical and that they have writ expert, been medical could not its have expertise. their fields of Of ten books have literature established medical original has been written is not course what purposes its use for of trial standard author of such a book was evidence. If Admission of such could court of law. original give might testimony; present he than nothing more the fact prove he has may what written not if not be amade recommendation manufacturer given reason, others, among likewise thereof. On substance cross-examina- present not so that he that he is admission the medical tion without To show he that to which cross-examined. interrogated (even one such expert being as present subject testified if would have Eakin, prop- for the administration of cross-examination, it frequently de indisputably within er anesthetic was to use a book that sired he has written. he expertise) honored and ac- field be done But this cannot unless a witness cepted recommendations of the manu- qualified as expert has been an who “authority” relative to the facturer as flow opponent has litigant’s done both of two proper and the rate of the anesthetic mix- viz: things, he must have testified that drugs ingredi- percentage ture recognized the absent expert he as author therein thе manufacturer’s recommen- ents authority”, “standard or as “authority” qualify exception an never dation could he, time, at the material ap which and as general hearsay rule excludes to the particular expertise applied plied field of from or as to the witness either written, guid- the book was upon which being interrogated. an ad- Even such *10 practice ed profession; (2) plaintiffs’ in the of his anesthesia. But expert witnesses he must have testified to the refused to of concede they recognized any what is written in the book. When this such author or book as “authority”. It was condition exists that to which because of he has testi experts’ defendants’ refusal may impeached by fied be so proving through concede that the court denied use of the book the different opinion any right to use the texts in their cross-ex- author, something absent and/or amination. With exceptions different some noticed in what should should not be done in the record same thing applied in the to Mrs. circumstances. statement Eakin acknowledge above is refusal to as her “authority” somewhat abbreviated but is our certain “short matter written ex- perts hand” statement the rule. Bowles v. anesthesia By field. Bowles v. Bourdon, 779, 783, 13 Bourdon, supra, 148 Tex. court did not err in excluding A.L.R.2d 1 or limiting cases cited therein. cross-examination of very recent case A where the exact or the matter defendants’ witnesses.
here discussed was treated a case of quote Plaintiffs in their brief as from similarity, holding by the court like Ray Evidence, McCormack p. 743. own, Eaton, Seeley unto our quoted (per That which is plaintiffs) is in (Houston, Tex.Civ.App., philosophical. the main It apparently rec- Dist., 1974, ref., n.r.e.). 14th writ ognizes that most courts do allow the use of produce
To the statements from materials learned in the cross-examination book, above, as is done what expert is witnesses expert where the has commonly “impeachment termed such in forming relied The theory witness”. of propriety proof testified which he has on cross-examination. therein of statements is because of the ac thereafter is Observed that some courts knowledgment of it only witness require as au would the witness ac- thority is to reсognized knowledge obey material sought to be ed, accompanied by impeachment the witness’ disobedi in his recognized used is au- negligent ence obey. thority though and/or failure to the field he has not relied practice it amounts to manner which a it. The discussion continues in broad- original kind evidence is introduced be ened areas consideration arriving by-product fore as a text what the authors conse seem to feel the rule it, itself, quence. In law never be rather attains should than what it generally original evidence, acknowledged the stature of for stand to be. impliedly What is ob- ing alone it would constitute mere hearsay. served is that ordinarily judgments support It would judgment not or issue in courts will not be reversеd where on trial Bourdon, a case. Bowles v. supra. such evidence is either admitted or exclud- ed. present instance, In the ap
plied to several instances of at Here the trial court excluded the evi- tempt to cross-examine Mrs. Eakin and de dence desired we are disposed not experts fendants’ medical the court ruled case reverse the because of the exclusion. books written by medical authori deem We do not exclusion erroneous. expertise ties in their fields of could not it amount to be Even should error we hold that words used. In other constitute not it did not reversible error be- permitted to read therefrom and ask the exclusion cause error was not such witness under cross-еxamination whether calculated to as would be cause proba- conformed, bly he did among etc. Included cause to have returned a sought material in books to be used was verdict different from that it would have instruction and had there recommendations concern returned not been an exclusion. “If Judgment the use Halothane as of the T.R.C.P. Reversed”. *11 rejected. jury findings The complaint point of error considered
There is collectively, whereby into it including the trial admitted evi re- because those records, dence, damages, of the hospital to find do fused not in this case signed by necessarily, probably, instrument Webb or even written demonstrate consenting surgery if there should be to the was that biased. thereto, reciting resort
decision Judgment is affirmed. of “risks had been informed she thereto, complications” incident etc. The September was dated ON MOTION REHEARING
instrument FOR saw her. days before Dr. Olcott ever four pointed Plaintiffs’ out counsel has complaint The is overruled. Plaintiffs original opinion in the we failed to Dr. Jorns was Mrs. overlook fact upon points whereby of pass error there he attending physician and that as- complaint exclusion, because of was surgery, perform the Dr. sociated Olcott trial, testimony expert of from their wit made to resort thereto. No upon decision nesses, Taylor, Dannemiller Drs. rela fail- inquiry Dr. Jorns’ submits issue tive to the manufacturer’s recommenda Mrs. Webb’s informed con- to obtain ure required the unit flow gas tiоns After Dr. Olcott became associated sent. use Halothane. Webb, the situation with discussed he previously discussed Dr. Jorns had It writing true that we overlooked By her. direction Dr. give thereupon. situation We did the matter consid- tests hospitalization was for very Jorns as will be observed eration surgery. The written “consent” in- possible beginning of the opinion section of the evidentiary and admissible. was complaints strument concerning we noted rul- where probative and effect weight and force Its of the court ings which there exclu- prove did not a lack of jury. for the It of evidence which the desired sion imparted Information consent. informed jury. fail to have before the We did is ordinari- contemplating surgery specifically rule on thе particular com- oral, written form. Such was rarely in ly plaints). information, any, if im- nature of the that, as Relative we evi- thereto remark inWebb the instant case. to Mrs. parted prior opinion, denced in the there is no in the is that only evidence record that the had before it doubt undis- consent in this case. If was informed there the manufacturer’s puted evidence recom- had found informed consent want- gas. for the unit flow of mendations Testi- by defendants that a contention no left doubt in the minds mony received great weight against finding plaintiffs’ expert witnesses of the evidence have
preponderance proce- opinion to use such were of the to be sustained. proper been recommended dure аs manufactur- Finally plaintiffs present point error necessity of reference to the er—without new they contend that a trial which material by which those manufacturer’s justice in the interest be ordered should were recommendations evidenced—was cor- multiple probable errors. of the because Nor was the left procedure. rect they thereunder refer argument that such of the doubt witnesses were ex- expert of their wit- suppression probable procedure pert to which right coupled with denial of nesses was resort instant case was there expert witnesses of defend- impeach improper. ants, represent- plus the verdict points of error as con- overruled prejudicе. We have con- ing jury bias and stituting “harmless error”. T.R.C.P. overrule it. the contention and sidered Judgment Reversed”. individually have “If complaint been Points rehearing On we have also reconsidered error, in points those addition to those
all upon, complaint here written
presenting passed contend not *12 These we have to be with-
upon. concluded all merit and are overruled.
out Clyde Sweeney, Stephenville, ap- Y. rehearing Motion for is overruled. for pellant. Anderson,
Hugh Lubbock, appellees. for McCLOUD, Chief Justice. Plaintiff,
This is a venue case. C. E. Ross, defendants, Refining sued Gulf Com- pany, BACCO, Inc., a corporation, corpo- a ration, Fletcher, and Richard B. d/b/a 4—B ROSS, Appellant, E.C. Company, to Construction foreclose a me- v. performed for labor lien chanic’s Ross et Fletcher, GULF REFINING COMPANY of BACCO, sub-contractor al., Appellees. Inc., general contractor Gulf. alleged performed Plaintiff work was No. 4830. gas pipeline owned on a Gulf and located Texas, Appeals Court of Civil BACCO, County. Inc., in Shackelford Eastland. pleas of privilege filed which Gulf Ross alleging proper controverted venue was Oct. County under Shackelford Subdivision 12 of Article Tex.Rev.Civ.Stat. court pleas privilege. sustained Plaintiff appealed. has affirm. We provides: Subdivision 12 “12. Lien. —A suit for the foreclosure mortgage may brought or other lien county property where the or subject to part thereof such lien is situat- ed.” McDonald, Practice,
In 1 Texas Civil it is stated the 4.20 venue facts § must plaintiff establish under Subdivision are: 12
“(I) action, the nature of determined petition; (II) from the the location of property thereof in the county suit, institution time (Em- extrinsic established evidence.’’ added) phasis Anderson, Hagan (Tex.Civ.App. Antonio — San 1974), curiam, n. per writ ref’d r. e. (Tex.1974), said: