Brooke v. Clark

• Decision Date: 12 May 1882
• Docket Number: Case No. 3601.
• Parties: JOSEPH BROOKE v. HENRY N. CLARK.
• Court: Texas Supreme Court

57 Tex. 105

JOSEPH BROOKE

v.HENRY N. CLARK.

Case No. 3601.

Supreme Court of Texas.

Apr. 23, 1880.

Jun. 24, 1881.

May 12, 1882.

APPEAL from Grayson. Tried below before the Hon. R. R. Gaines.

Fifteen days after the birth of Henry N. Clark, the appellee, this suit was brought by his next friend in his behalf to recover damages of Dr. John Brooke, a practicing physician, who acted as accoucher at the child's birth. Brooke was charged with gross negligence in tying a ligature around appellee's penis, instead of the umbilical cord, at his birth, whereby the glands of the penis came entirely off.

The material testimony was as follows:

Helen R. Clark testified in substance: “She was the mother of the plaintiff; the appellant was the attending physician at his birth; he tied the umbilical cord while the child was in bed, but whether under the cover or not, did not know; heard some one ask him if he wanted a light, and he said ‘no, it was not necessary.’ When he came in the next morning, upon my mother showing him the child, she said to him, ‘see what you have done.’ He said, ‘I don't think it will amount to much; it will get well in a short time.’ 'DD'

Mrs. Emily McClellan testified that she “is the mother of Mrs. Clark, and was present when the plaintiff was born. Dr. Brooke was the attending physician, and he was standing at the foot of the bed, and received the child from its mother. Before receiving the child from beneath the bed-clothing, he tied one cord or ligature, and then removed the cover, tied the second ligature, and cut the umbilical cord, when the child was by Brooke handed to the witness, who wrapped it in a blanket and sat by the stove trying to quiet it. When the first ligature was tied, the child cried out like it was hurt, and continued to cry for about an hour. The doctor then took the child in his lap, and examined it, and said the string had slipped off the navel cord. He asked for another string, which I gave him; had given him one at his request before the child was born; both were common wrapping twine. Mrs. Chaffin assisted Dr. Brooke, and he tied a string on the navel cord, and returned the child to me, and I washed and dressed it and cared for it until morning. The child had spells of crying through the night; all the dressing that was done next morning was changing its diaper, and that was done by me. When washing the child next morning, I found a string hanging down, and, taking hold of it, I found it was tied to the child's penis; it was a part of the same cord witness gave to Dr. Brooke the night before. I had charge of the child all night. When Dr. Brooke came I showed him what he had done, and he said it was probably owing to Mrs. Chaffin being excited, and holding up the wrong thing for him to tie. There was but one string around the navel cord when I dressed the child. There was no string tied after the child was dressed; no one had the child before it was dressed except Dr. Brooke and myself.”

The witness, Mrs. McClellan, did not say that she saw it was a boy when she dressed it, but at the time Brooke put it in the blanket for her to take, she saw its sex.

Mrs. C. J. Van Fossen testified: “I was present when Henry N. Clark, plaintiff, was born. Dr. Brooke was the attending physician; he received the child from its mother; Mrs. McClellan was standing at the foot of the bed with a blanket, and Dr. Brooke laid the child upon the blanket; the child was in the hands of Mrs. McClellan when I first saw it. Dr. Brooke asked for a cord before the child was born. Mrs. McClellan took the child and sat by the stove, trying to quiet it. The child cried without ceasing while I stayed. When I went away, left Brooke there. Heard Dr. Brooke say the child was a boy, before it was dressed. Was not present when Mrs. Chaffin and Dr. Brooke tied the cord.”

Mrs. A. Pearson testified that she was present when the plaintiff was born. Dr. Brooke was the attending physician, and received the child from its mother and handed it to Mrs. McClellan, who received it on a blanket, and sat by the stove, trying to quiet the child, which was crying. Heard Mrs. McClellan ask whether the child was a boy or girl, and the doctor said it was a boy. First saw the child in Mrs. McClellan's hands, a short time after the child's birth. Some one asked the doctor what was the matter with it, and he took it on his lap, when I left the room. When I returned to the room Mrs. McClellan had the child. Did not see Dr. Brooke and Mrs. Chaffin tie any cord on the navel cord-- was out of the room at that time. Was in the room, but did not see Mrs. McClellan wash and dress the child. The child was crying while Mrs. McClellan had it. Heard Dr. Brooke tell Mrs. McClellan, before he left, to notice the cord, and if it slipped and she could not tie it, to send for him. I nursed the child some time after it was washed and dressed. Stayed in the house that night, in another room; left the child with Mrs. McClellan; did not hear any more of it that night. The next morning, about eight o'clock, Mrs. McClellan called me to look at the child's penis. I saw a cord tied around it, and the penis was very much swollen and purple. I held it while the string was cut off.

Mrs. L. J. Chaffin testified, in substance, that she was present at the birth of plaintiff. Dr. Brooke was the attending physician. He received the child from its mother, and, after tying the ligature around the umbilical cord, handed it to Mrs. McClellan. In answer to Mrs. McClellan, Dr. Brooke said it was a boy. Mrs. McClellan nursed the child until she gave it to Dr. Brooke. She did not leave the room with the child. She handed it to Dr. Brooke, to see what was the matter with it, and he said the cord tied on the navel cord had slipped off. He and I tied another cord upon the navel cord. Dr. Brooke held the umbilical cord while I tied the string on it. Did not see any cord around the navel cord when I tied one around it.

Defendant testified in his own behalf, in substance, that he did not tie the ligature on the plaintiff's penis.

Most of the glands of the penis were destroyed, though in its mutilated state it answered for urinating purposes, and physicians thought it might, when the child was grown, be used for getting children, though under difficulties on account of the destruction of the glands.

Verdict and judgment for $5,500. The assignments of error are apparent from the opinions.

Hare & Head, for appellant.

I. The probable injury that may result to a child only two years old, in his ability to get children upon arriving at the proper age, should not be taken into consideration in estimating the damage sustained by the child from an injury to its penis. Defendant below asked the court to charge the jury that, “in estimating the damage, not to take into consideration any injury plaintiff may have sustained in his ability to get children when he arrives at the proper age,” which the court refused.

II. The pleasure which a child under the age of puberty may experience in the act of copulation, when he arrives at the proper age, should not be taken into consideration in estimating the damage for an injury to its penis. Defendant below, in the fourth charge asked by him, requested the court to charge the jury “not to take into their consideration any damage that may have been done to plaintiff in his ability to copulate upon arriving at the proper age.” This charge was refused.

III. An injury resulting from an innocent mistake or accident will not justify vindictive damages or smart money. Wallace v. The Mayor, 2 Hilt., 440; Thompson's Carriers of Passengers, 573; Mayne on Damages, 57, note; 54 Tex., 125.

They argued at length that the verdict was not supported by evidence.

J. R. Cowles and Throckmorton & Brown, for appellee.

BONNER, ASSOCIATE JUSTICE.

Appellee Henry N. Clark, a minor, by his next friend, instituted this suit February 15, 1875, against appellant John Brooke, for damages, actual and exemplary, for an alleged act of gross negligence on the part of Brooke as physician and accoucher on the occasion of the birth of Clark.

On November 10, 1877, a trial was had, which resulted, upon verdict of a jury, in judgment in favor of Clark for $5,500, from which this appeal is taken.

During the pendency of the appeal defendant Brooke died, and motion has been made to dismiss the suit upon the ground that, being a personal action, it abated with his death.

Our statute enacts that a cause pending by appeal or writ of error in the supreme court shall not abate by the death of a party to the record, provided that this shall not apply to any suit or action in which the cause of action does not survive in favor of or against the legal representatives of a deceased person. Pasch. Dig., art. 6463; R. S., art. 1044.

In the recent case of Galveston City R. R. Co. v. Nolan, 53 Tex., 139, the conflicting decisions of this court upon this question were reviewed, and that of Gibbs v. Belcher, 30 Tex., 79, approved, to the effect that the original cause of action was merged into the judgment of the district court in favor of a plaintiff, and that such judgment was not vacated or opened by writ of error or appeal, but remained valid and subsisting until set aside, and constituted in favor of the legal representatives the cause of action.

The motion to abate will therefore be overruled.

The objection is raised in this court, that the court below failed, under appropriate instructions, to submit separately to the jury the questions of actual and exemplary damages, and to require them to respond accordingly in their verdict.

That this is the proper practice, was held in R. R. Co. v. Le Gierse, 51 Tex., 189, but the decision in that case did not turn upon that question.

In the later case of R. R. Co. v. Casey, 52 Tex., 112, it is said that “it is the proper practice in cases of this character to instruct the jury to find separate verdicts, one as to the actual and the other as...