Coffman v. Hedrick
| Decision Date | 30 December 1968 |
| Docket Number | No. 15392,15392 |
| Citation | 437 S.W.2d 60 |
| Parties | Herbert COFFMAN, Appellant, v. E. S. HEDRICK, Appellee. . Houston (1st Dist.) |
| Court | Texas Court of Appeals |
Herbert Coffman, pro se.
Fulbright, Crooker, Freeman, Bates & Jaworski, Gary B. Webb, Harry L. Tindall, Houston, for appellee.
This is an appeal from a judgment rendered against appellant who brought a malpractice suit against appellee who is a chiropractor. The court rendered judgment for the defendant because it was of the view that the negligence alleged, except for the acts alleged to have occurred April 13, 1963, occurred more than two years before suit was filed and any cause of action that might have existed prior to that date was barred by the two year statute of limitation. As to the acts alleged to have occurred on April 13, 1963, appellant stipulated he could make no proof.
Appellant's original petition was filed April 13, 1965. It alleged that on April 13, 1963, appellant was treated by appellee and appellee diagnosed his condition erroneously and that due to such erroneous diagnosis appellant suffered 'injuries and damages' in the amount of $15,000.00. This petition was timely answered by appellee and issue was thus joined.
Thereafter, on November 22, 1966, appellant filed his First Amended Original Petition. In it he alleged that sometime prior to the year 1963 he had been under treatment by appellee for some injuries he had received. It is then alleged that in January 1963 he was injured in an automobile collision and went to appellee for treatment and that treatment began on or about January 27 and continued until the last treatment on April 13, 1963. There then are very general allegations that in making diagnosis and in prescribing and administering treatment appellee was negligent and that this negligence caused appellant to suffer severe and aggravating injuries to his back and damage to his arms, head and entire body.
On May 31, 1967, appellee filed a motion for partial summary judgment the effect of which was to assert that on a basis of appellant's amended petition the acts of negligence occurring before April 13, 1963, which at the time of their commission gave rise to a cause of action, could not be the basis of recovery because barred by the two year statute of limitation.
On September 11, 1967, this motion was granted and appellant was limited in his proof as to such acts as occurred on or after April 13, 1963.
On April 17, 1968, the trial court rendered final judgment that appellant take nothing. The judgment recited the rendering of the partial summary judgment limiting appellant's proof to acts committed on or after April 13, 1963 and recited further that appellant by and through his attorney appeared and stipulated he could not make proof of acts or omissions or negligence limited to April 13, 1963 or thereafter. Because of this judicially admitted inability to make proof and the court's holding that recovery for acts committed prior to such date was barred by the two year statute of limitation, this take nothing judgment was rendered.
We affirm.
Article 5526, Vernon's Ann.Civ.St., in so far as is here material, reads as follows:
'There shall be...
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