Wilkins v. Ferrell

Decision Date13 March 1895
PartiesWILKINS v. FERRELL.
CourtTexas Court of Appeals

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.

Morris & Crow, for appellant. Bassett & Muse, for appellee.

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 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, 1890, the exact day is not alleged. Defendant excepted specially for the want of these allegations in the petition, and the court overruled the exception. In Wells v. Fairbank, 5 Tex. 585, Justice Wheeler, discussing the particularity necessary in pleading, says: "The rule that the pleader must state the facts on which he intends to rely as constituting his cause of action or ground of defense is universal in its application in our pleadings, with the single exception of the plea of `Not guilty' in the action of trespass to try title. But, although a statement of the facts is indispensable, it is not necessary to state such circumstances as constitute merely the evidence of those facts. The simple allegation of the fact is sufficient, without detailing a variety of minute circumstances which merely conduce to prove the truth of it. To require all those circumstances which constitute but the evidence of facts to be stated would lead to inconvenient detail and intolerable prolixity in pleading, and it would be to require that which must often be impracticable, and, if attempted, hazardous to the rights of the party; for it is not always possible for the pleader to know in advance precisely what his evidence will be, and a variance might be fatal to his cause; hence the necessity of adhering to the rule that what is merely the evidence of facts need not be stated. While our law rejects the fictions and generalities of the common-law system of pleading, and requires that the pleader shall state truly the facts of his case, and when the nature of the case may seem to require or will conveniently admit of it with even circumstantial accuracy in the application of the rule, we must avoid the opposite extreme of requiring such a degree of speciality and minute particularity of detail as would be either impracticable or extremely inconvenient in practice. This can only be done by keeping in view and maintaining the rule we have indicated, the consequence of which is that, if the fact be pleaded, the evidence of such fact may be submitted to the jury, although not specially developed in the pleading by a detail of all the attendant circumstances. The rule may, indeed, sometimes be difficult in its application, for cases may be presented in which it will be difficult readily to distinguish the facts proper to be pleaded from the circumstances which are but the evidence of the facts. But the reason and propriety of the rule are obvious. It is so elementary in its character as to be easy of comprehension; and the careful pleader who possesses a competent knowledge of his subject — that is, the facts of his case and the law arising upon those facts — will seldom be embarrassed in its application." In Railway Co. v. Witte, 68 Tex. 296, 4 S. W. 490, Justice Gaines says: "At common law, time was usually stated under a videlicet. This, by some authorities, was decided necessary in order to release the pleader from the necessity of proving the exact date as alleged. But a requisite so purely formal as this has no place in our system of...

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