30 S.W. 450 (Tex.Civ.App. 1895), Wilkins v. Ferrell

Citation:30 S.W. 450, 10 Tex.Civ.App. 231
Opinion Judge:[10 Tex.Civ.App. 233] FINLEY, J.
Party Name:WILKINS v. FERRELL.
Attorney:[10 Tex.Civ.App. 232] Morris & Crow, for appellant. Bassett & Muse, for appellee.
Case Date:March 13, 1895
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 450

30 S.W. 450 (Tex.Civ.App. 1895)

10 Tex.Civ.App. 231

WILKINS

v.

FERRELL.

Court of Civil Appeals of Texas

March 13, 1895

Appeal from district court, Dallas county; Charles Fred. Tucker, Judge.

Action by R. S. Ferrell against George Wilkins. From a judgment for plaintiff, defendant appeals. Reversed.

[10 Tex.Civ.App. 232] Morris & Crow, for appellant.

Bassett & Muse, for appellee.

[10 Tex.Civ.App. 233] FINLEY, J.

This suit was instituted in the district court of Dallas county by R. S. Ferrell against George Wilkins. The petition charged that in March, 1890, defendant was engaged in the practice of dentistry in the city and county of Dallas, Tex., and had assistants and employés engaged in said work under him, and that one of said assistants, under the direction of appellant, in March, 1890, extracted a tooth for appellee, and that in doing so defendant and his assistant conducted themselves so negligently and with such want of due skill and care as to fracture appellee's lower jawbone from the hinge of the jaw to the center of the chin, from which appellee sustained great pain and suffering, and was permanently injured and disfigured, and all the teeth on one side removed, and by which the muscles, flesh, tissues, and nerves of his face, neck, and shoulder have become diseased and paralyzed, etc., for all of which appellee claimed $20,000 actual damages, and $10,000 exemplary damages. December 2, 1891, appellant filed his first amended original answer, in which he set up general demurrer and special exceptions 2 and 3, and a special answer, denying any knowledge of or connection with the extraction of appellee's tooth, and that, if it was done by any [10 Tex.Civ.App. 234] one in the building occupied by appellant, it was done by an independent practitioner, not under the direction or control of appellant. (2) Appellant set up contributory negligence, and charged that before appellee's tooth was extracted it had become ulcerated and inflamed, and after it was extracted he failed to return to the operator for treatment, and failed to secure proper medical aid and attention from any one, whereby he contributed to the injuries of which he complains. (3) Said answer further set up general denial. March 8, 1893, the cause was tried before a jury, and verdict and judgment rendered for appellee for $3,000.

First assignment of error: "The court erred in overruling special exception in paragraph two of defendant's answer, because it appears from plaintiff's petition, if he was injured, it was done by another, and not by defendant, and the name of such person is not given, and no excuse is alleged for not doing so, and no facts are stated to inform defendant of the particular transaction complained of, and while the time is fixed as March, 1890, the exact day is not given." Plaintiff alleged that in March, 1890, defendant had assistants and employés engaged in the practice of dentistry under him, and that one of said assistants or employés, not naming him, extracted plaintiff's tooth, from which his injuries herein arose; and while the time is fixed as March...

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