Carrell v. Denton

• Decision Date: 07 January 1942
• Docket Number: No. 2382-7749.,2382-7749.
• Citation: Carrell v. Denton, 157 S.W.2d 878, 138 Tex. 145 (Tex. 1942)
• Parties: CARRELL et al. v. DENTON.
• Court: Texas Supreme Court

157 S.W.2d 878

CARRELL et al. v. DENTON.

No. 2382-7749.

Commission of Appeals of Texas, Section A.

January 7, 1942.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Elbert Denton against Dr. W. B. Carrell and others for malpractice. Judgment for defendants was reversed by Court of Civil Appeals, 138 S.W.2d 878, and defendants bring error.

Judgment of the Court of Civil Appeals reversed, and judgment of district court affirmed.

Lawther, Cramer, Perry & Johnson and Robert M. Perry, all of Dallas, for plaintiffs in error.

Shelby Cox, of Dallas, and Grisham & Grisham, of Tyler, for defendant in error.

HARVEY, Commissioner.

This suit was brought by Elbert Denton against Dr. W. B. Carrell and two other practicing physicians, composing a partnership. The suit was commenced December 15, 1936, and the object of the suit is the recovery of damages for personal injury negligently inflicted on the plaintiff November 24, 1931. Said personal injury occurred in connection with a surgical operation performed by Dr. Carrell on the spine of the plaintiff. In performing the operation, the doctor made an incision in the back side of plaintiff's body and inserted inside his body cavity a number of gauze sponges. Upon completing the operation and closing the incision, Dr. Carrell negligently left one of said gauze sponges inside plaintiff's body, and a few days later the plaintiff was discharged from the hospital. Plaintiff remained ignorant of the fact that the gauze sponge was in his body until November 17, 1935, on which date his mother, in dressing the wound in his back, discovered a portion of the gauze sponge protruding from the wound, whereupon she drew the gauze sponge from plaintiff's body.

The above facts are alleged in the plaintiff's petition. The defendants interposed a special exception, whereby they invoked the statute of two years limitation, R.S. Art. 5526. The ground of the exception is...