Barnard v. Thompson
| Decision Date | 07 January 1942 |
| Docket Number | No. 2383-7793.,2383-7793. |
| Citation | 158 S.W.2d 486 |
| Parties | BARNARD et al. v. THOMPSON. |
| Court | Texas Supreme Court |
Suit by J. B. Thompson against Dr. W. C. Barnard and others to recover damages resulting from the alleged negligence of defendants in connection with a surgical operation performed on the plaintiff's wife. The trial court dismissed the suit, and the plaintiff appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 142 S.W.2d 238, reversing the trial court's judgment and remanding the cause, the defendants bring error.
Judgment of Court of Civil Appeals affirmed.
Tarlton & Vaughan, B. D. Tarlton, Charles L. Hale, Jr., and I. M. Singer, all of Corpus Christi, for plaintiffs in error.
Bryan Blalock, of Texarkana, and W. R. Smith, Jr., of Austin, for defendant in error.
HARVEY, Commissioner.
This is a suit by J. B. Thompson against Dr. W. C. Barnard and two other physicians, constituting a partnership. The suit was commenced December 6, 1935, and its object is the recovery of damages resulting from the negligence of the defendants which occurred in connection with a surgical operation performed by them on Lelia Thompson, the wife of the plaintiff. The operation was performed on January 6, 1930. In proper performance of the operation, the surgeon made an incision in Mrs. Thompson's abdomen and inserted a number of gauze sponges in the abdomen. The surgeon negligently failed to remove two of the gauze sponges from the abdomen and they remained there after the operation was concluded and the incision closed. The fact that the gauze had been left inside her body was not discovered by Mrs. Thompson until June 27, 1935, six months before this suit was commenced. The discovery occurred when a second operation was performed by a different surgeon. All these facts appear in the plaintiff's petition. The defendants, by special exception, invoked the statute of two years limitation, Article 5526. The trial court sustained the special exception and dismissed the suit. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 142 S.W.2d 238.
The action of the Court of Civil Appeals is correct, for the reason that the plaintiff's petition contains a paragraph which reads as follows:
"Plaintiff alleges that during said operation and at any and all times after said...
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...after closing the incision is negligence as a matter of law. Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.1940), aff'd 138 Tex. 277, 158 S.W.2d 486 (1942). When this occurs, the suppression of something which the party is bound to disclose is fraudulent concealment. Magee v. Manhattan L......
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...Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931); Thompson v. Barnard, 142 S.W.2d 238, 241 (Tex.Civ. App.1940), aff'd, 138 Tex. 277, 158 S.W. 2d 486 (1942). 30 Emmett v. Eastern Dispensary & Cas. Hosp., 130 U.S.App.D.C. 50, 54, 396 F.2d 931, 935 (1967). See also, Swan, The California L......
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Robinson v. Weaver
...and fraudulent concealment in medical malpractice cases, Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.1940), aff'd, 138 Tex. 277, 158 S.W.2d 486 (1942). In an action for breach of contract, or implied warranty, the statute of limitations runs from the time plaintiff knew or should have ......
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Emmett v. Eastern Dispensary and Casualty Hospital
...Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931); Thompson v. Barnard, 142 S.W.2d 238, 241 (Tex.Civ. App.1940), aff'd 138 Tex. 277, 158 S.W. 2d 486 (1942). 18 Compare Garfield Memorial Hosp. v. Marshall, 92 U.S.App.D.C. 234, 239, 204 F.2d 721, 725, 37 A.L.R.2d 1270 (1953). See also Ald......