Edwards v. West Texas Hospital, 4768.

• Decision Date: 31 May 1937
• Docket Number: No. 4768.,4768.
• Citation: 107 S.W.2d 729
• Parties: EDWARDS et al. v. WEST TEXAS HOSPITAL, Inc., et al.
• Court: Texas Court of Appeals

Page 729

107 S.W.2d 729

EDWARDS et al. v. WEST TEXAS HOSPITAL, Inc., et al.

No. 4768.

Court of Civil Appeals of Texas. Amarillo.

May 31, 1937.

Rehearing Denied July 10, 1937.

Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Action by E. P. Edwards and others against the West Texas Hospital, Inc., and others. From judgment for defendants and denial of new trial, plaintiffs appeal.

Affirmed.

Vickers & Campbell and Wm. H. Evans, all of Lubbock, for appellants.

Crenshaw & Dupree and McWhorter & Howard, all of Lubbock, and Malone, Lipscomb, White & Seay and Touchstone, Wight, Gormley & Price, all of Dallas, for appellees.

FOLLEY, Justice.

This is a damage suit for alleged malpractice and negligent treatment by the appellees resulting in the death of Virgie Edwards. E. P. Edwards and his three minor children, Ethel, Andrew, and Virgie May, and Mrs. T. C. Hollander are the appellants and were the plaintiffs in the trial court. They are the surviving husband, minor children, and mother of Virgie Edwards, deceased. The West Texas Hospital, Inc., and Drs. Ann West and C. J. Wagner are the appellees and were the defendants in the trial court.

This is the second appeal of this case. The first appeal was predicated on the error of the trial court in giving an instructed verdict for the defendants at the conclusion of plaintiffs' testimony. This court reversed the trial court's judgment. 89 S. W.(2d) 801. We refer to this opinion for a complete statement of the nature of this case, however, the case as now before us is more fully developed in that we have the testimony of the appellees and the verdict of the jury, which were not in the former appeal.

The present case was submitted to a jury upon special issues and the jury returned a verdict against the plaintiffs in the trial court on every issue submitted. Judgment was entered for the defendants and against the plaintiffs, from which judgment and the court's action in overruling a motion for a new trial, appellants prosecute this appeal.

Plaintiffs alleged in substance that prior to February 8, 1934, Virgie Edwards was pregnant with twins and that Dr. Ann West was employed to treat her in her confinement. That Dr. West delivered only one child at the time Mrs. Edwards was in labor, which child is alive and one of the plaintiffs in this suit. The second child was not delivered for some twenty-three days thereafter. This second baby was not discovered by Dr. West. That on February 10th, two days thereafter, Dr. West brought the said Virgie Edwards to the West Texas Hospital at Lubbock for diagnosis and treatment and Dr. C. J. Wagner was consulted by Dr. West. That the deceased remained in the hospital under the treatment of the defendants for eleven days and she was discharged without the second child being delivered or even discovered. That the defendants advised that the deceased be taken to her home for treatment and that she there remained until about March 3d when she was brought to the Lubbock Sanitarium for diagnosis and treatment; that Dr. J. T. Krueger, of the Lubbock Sanitarium, advised an immediate operation, which operation was performed and a second child was delivered in a dead and decomposed condition. That on account of the delay in delivery of the second child an infection had set up and so poisoned the said Virgie Edwards that she died.

Plaintiffs further alleged that the defendants failed to make a proper diagnosis and to properly treat the deceased and deliver her of her second child. That the failure to properly diagnose and treat the deceased was negligence and the direct and proximate cause of her death.

They alleged that the West Texas Hospital held itself out as engaging in the diagnosis and treatment of human beings and had a professional staff of physicians and surgeons as representatives of the hospital. That Dr. Wagner was on this staff and one of its chief physicians and surgeons as well as an officer and director of the hospital. That all the defendants were partners and associated in a joint undertaking in diagnosing and treating the deceased, and by reason of the alleged negligence, they were each responsible, jointly and severally, for her suffering and death.

Each of the defendants answered with a number of demurrers and exceptions, a general denial, and a sworn denial of partnership with each other. The defendant West Texas Hospital alleged that it was incorporated and organized as a hospital and sanitarium for the purpose of furnishing accommodations and facilities for the sick and afflicted. That it furnished only those accommodations usually furnished by hospitals, such as rooms, beds, linens, food, and operating equipment. That it did not undertake to practice medicine or surgery or to direct in any way the diagnosis or treatment of patients, and that its only connection with deceased was to afford such facilities as were usually furnished by hospitals to physicians or surgeons who might see fit to place such a patient in its hospital. That the physicians who diagnosed and treated the deceased while she was in the West Texas Hospital did so in the exercise and practice of their own independent calling as a physician, and by reason of said facts, the hospital was not liable.

Dr. C. J. Wagner alleged that he made a careful examination of the deceased and that he was advised of her recent delivery of a child. That he used all the means which, in his opinion and best judgment as a physician and surgeon, were necessary at the time to diagnose her condition, and did not neglect to use any means which, in his judgment, would have aided him in arriving at a diagnosis of her condition. That after making the diagnosis and taking into consideration her weakened condition as a result of her recent labor and child bearing, he honestly believed that an immediate operation upon the deceased would have resulted in her death. That if her illness and death were due to any fault or negligence of any person, it was the fault or negligence of some one other than the defendant Dr. C. J. Wagner.

The defendant Dr. Ann West alleged that she was employed to wait upon Virgie Edwards during her confinement and subsequent delivery; that she delivered the first child. That prior to said time the deceased and her husband advised her that the deceased had been operated on and a large ovarian tumor had been removed. That she made a physical examination of Virgie Edwards and as a result of such examination and history, she was of the opinion that such a tumor had returned. That the deceased was not recovering from her childbirth as she had expected her to, and two days later she took Mrs. Edwards to the West Texas Hospital and placed her in the care of Dr. C. J. Wagner, and gave him a complete history of Mrs. Edwards' condition. That after she delivered the deceased to Dr. Wagner for treatment, she did not treat or administer to her nor have any supervision or control of the further treatment of Mrs. Edwards, but that Dr. Wagner had exclusive and complete control and charge of the patient. That all of this was done with the full knowledge and consent of Mrs. Edwards and her husband. That the death of Mrs. Edwards was not caused or contributed to by any failure of said defendant to exercise skill, judgment, prudence, and diligence.

The trial court submitted the case to the jury upon special issues, and the jury found, among other things, (a) that the West Texas Hospital did not accept Virgie Edwards as a sick person for diagnosis and treatment; (b) that the hospital was not guilty of want of ordinary care in failing to remove the baby from the abdomen of Virgie Edwards while she was in the hospital; (c) that Dr. Wagner did not fail to exercise ordinary care to diagnose Virgie Edwards' ailment; (d) that Dr. Wagner was not guilty of negligence in failing to remove the baby from her body during the time she was under his care and treatment; (e) that Dr. West did not fail to exercise ordinary care to diagnose the condition of Mrs. Edwards; (f) and Dr. West was not guilty of negligence in failing to remove the baby from her body.

No objections were filed by the plaintiffs to this charge.

The appellants present only two assignments of error. Under their first assignment, the appellants, who were plaintiffs below, complain of the action of the trial court in allowing each of the three defendants in the trial court, six peremptory challenges to the jury panel. As indicated in the bill of exceptions, only twelve challenges of the eighteen peremptory challenges permitted to the three defendants were actually exercised. One of the chief complaints of the action of the trial court is based upon the proposition that the defendants and their attorneys retired in the same room and apparently consulted and acted together in making their peremptory challenges.

Article 2148, R.S.1925, provides: "Each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court, and to three in the county court."

It has long been well settled in Texas that it is entirely proper for the trial court to permit attorneys for various defendants who have been allowed six peremptory challenges, to consult each other in making such challenges. First National Bank of Cuero v. San Antonio & A. P. R. Co., 97 Tex. 201, 77 S.W. 410, 412. In this case Chief Justice Gaines, speaking for the Supreme Court of Texas, says: "But it was further objected to the mode of impaneling the jury that the defendants were permitted to consult and to act together in exercising their challenges and in striking the objectionable names from the jury lists. The statute does not prohibit such action, and we are of the opinion that the court did not err in allowing it." We think that case clearly disposes of that portion of the assignment as to the defendants acting together in exercising their peremptory challenges. Certainly, if they were entitled...