Giles v. Tyson

• Decision Date: 23 January 1929
• Docket Number: (No. 8128.)
• Citation: 13 S.W.2d 452
• Parties: GILES v. TYSON.
• Court: Texas Court of Appeals

13 S.W.2d 452

GILES v. TYSON.

(No. 8128.)

Court of Civil Appeals of Texas. San Antonio.

January 23, 1929.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by J. T. Tyson against H. R. Giles. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tarlton & Lowe, of Corpus Christi, and R. B. Russell, of San Antonio, for appellant.

Boone & Savage and Felix Raymer, all of Corpus Christi, for appellee.

FLY, C. J.

This suit was instituted by appellee against appellant to recover damages alleged to have arisen from the negligence of appellant in applying the X-ray to his arm to locate a piece of steel, which had been forced into his arm while he was working as an automobile mechanic and was imbedded in the periosteum of the ulna bone of his left arm. It was alleged that the X-ray was negligently applied and the arm of appellee so burned and permanently injured as to prevent its use, and render him incapable of pursuing his occupation as a mechanic. The cause was submitted to a jury through special issues, and on their answers judgment was rendered against appellant in the sum of $7,500.

Forty-six assignments of error are copied into the brief, under which 11 propositions of law are presented. The first and second propositions are overruled. The allegations as to the piece of metal being driven into the arm of appellee were mere matters of inducement, leading up to and showing the necessity for the employment of a physician and the consequent use of the Roentgen ray to locate the metal. It is clear from the pleadings that damages were not sought from appellant for any injuries except those arising from the negligence of the physician, and the issues submitted to the jury confined their verdict to damages arising from the negligent application of the rays to the arm of appellant. Appellant objected to the emphasis put upon the negligence of appellant in the issues submitted by the court.

Appellee had taken the depositions of Dr. Dalton Richardson, of Travis county, as an expert Roentgenologist, and before the trial began appellant presented a motion to suppress the depositions on the ground of defects in the certificate of the notary public who took the depositions, and the motion was granted and the depositions suppressed. Afterwards the parties announced ready and the trial proceeded for several days, and then, without any order setting aside the order suppressing the depositions, they were offered in evidence by appellee, and over the objections of appellant were presented to the jury as evidence in the case. The court, in the qualification to the bill of exceptions, stated: "That the original depositions were again offered in evidence and admitted after J. W. Dibrell, the notary who took the same, appeared as witness in behalf of plaintiff and had identified the depositions offered, and by his testimony, and all matters in relation thereto, had satisfied the court that the depositions offered had not been tampered with, that they had been deposited by him in the mails and were in the exact condition as when deposited, and after the court had permitted him to correct his certificate as shown by the defendant's bill of exception No. 2."

The bill of exceptions, to which the court referred, showed Dibrell's testimony, in which he stated that he was a notary public in Travis county, that he took the depositions of Dr. Dalton Richardson, and identified the commission, deposition, and envelope which had contained the same, that they were in the same condition as when put in the envelope, and that he sealed the envelope and deposited it in the post office at Austin for transmission to Corpus Christi. He said: "I filled in the certificate on the envelope, and in some fool way I overlooked signing it. I put the seal on the outside of the envelope and wrote my name across here." He stated that he took a "second set of depositions," and "returned those through Mr. Felix A. Raymer, one of the counsel for plaintiff in the case." The answers were identical with those in the first depositions.

He thus states how he took the second deposition: "In taking the second set of depositions, I used a carbon copy of the answers taken in the first set. I read over each question to the witness, and he read his answers back. I didn't transcribe the answers the second time. The carbon copy of the answers had been supplied to me by Mr. Raymer the morning of the day I took them. The second set of interrogatories were also supplied to me by Mr. Raymer. I took them out to Dr. Richardson's house, and read over each interrogatory, and he held these answers in his hand and read them back to me as his answers. They are the identical answers that had been supplied to me by Mr. Raymer. I, of course, first swore the witness to that second set of depositions as I did the first set, and then he proceeded to answer. I erased the date in the jurat, and also in my certificate, and placed another date in there. My certificate is a carbon copy of what I had made in the first instance."

After the foregoing statement, Dibrell was, over the objection of appellant, permitted to sign his omitted name on the envelope of the original depositions of Dr. Richardson. It is a little obscure in the record as to whether the "warmed over" depositions taken on carbon copies, or the suppressed depositions, were used in evidence, although it is indicated in the qualification to the bill that the suppressed depositions were used, and not the carbon copy. In either event, the depositions were not such as are demanded by the statute. To say the least, the whole proceeding in connection with the suppressed depositions was very informal, if not illegal, and not justified by any statute of the state.

Whether the depositions were illegal or not, they were admitted in evidence over the protest of appellant, and he sought to withdraw his announcement of ready for trial, which he made after the depositions had been suppressed, and not having in view a trial in which the depositions would be used as evidence. The evidence of the expert Roentgenologist was very important, and doubtless had great influence with the jury, and the court erred in not permitting appellant to withdraw his announcement of ready for trial. It was apparent that the appellant was surprised at the action of the court in connection with the resurrection and use of depositions which the court had suppressed. We sustain the second, fourth, and fifth propositions.

The discovery of the rays known as Roentgen or X-rays, marked a mighty stride in the science of surgery, making operations certain which in former times had been experimental and unsatisfactory. It is a dangerous agency, as is electricity, and for quite a time after its discovery its application or administration was marked with accidents and incurable injuries, not only to the patient, but to the person administering it. However, after years of research, study, and experimentation, the new rays of light have become docile servants and invaluable agents in relieving pain, destroying disease, and rendering possible the most delicate surgical operations. The science of the X-ray has become certain and exact, and its application and use is known and understood in all civilized and advanced communities by the administrators of the rays. Such being the status of the Roentgen, or more properly Röntgen, rays, it is a fixed and exact science and the safe mode of its application and use is, or should be, as well known in one community as another, and in city, town, or village there can be but one proper way to apply the useful, but dangerous, agency.

Such being the case, an expert in the use of X-rays can testify to its proper use in village or city, The proper use of it in New York would be the proper use of it in Austin or Corpus Christi, and any other use of it by a physician or scientist...