Hamilton v. Harris

• Decision Date: 12 June 1918
• Docket Number: (No. 6067.)
• Citation: 204 S.W. 450
• Parties: HAMILTON v. HARRIS.
• Court: Texas Court of Appeals

204 S.W. 450

HAMILTON v. HARRIS.

(No. 6067.)

Court of Civil Appeals of Texas. San Antonio.

June 12, 1918.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Action by J. A. Harris against Dr. W. S. Hamilton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hertzberg, Kercheville & Thomson, of San Antonio, for appellant. T. H. Ridgeway and T. M. West, both of San Antonio, for appellee.

SWEARINGEN, J.

Appellee, J. A. Harris, brought this suit against Dr. W. S. Hamilton, the appellant, to recover damages for personal injuries alleged to have been inflicted upon appellee by the negligent application of X-rays to the body of appellee for the purpose of treating eczema, which application resulted in burning appellee. The cause was submitted to a jury in a general charge. There was a verdict and a judgment in favor of appellee against appellant for $2,500.

The cause alleged was that the X-ray is a dangerous agency; that appellant was negligent because he failed to protect, with a blanket of lead, or a composition of rubber and lead, appellee's body from being burned, such protection being usual and customary; that the opening in the protecting blanket was too large; that the current applied by appellant was too much and too intense, making it too powerful; that appellant exposed appellee to the current for too long a time; and that appellant left the room in which the treatment was administered during the application of the X-ray, whereas he should have remained and watched the effect of the treatment. Injury, pain, suffering, loss of time, permanent injury, etc., were fully alleged.

Appellant answered by general demurrer, general denial, and specially alleged in defense that the injury to appellee was caused by the peculiar condition of appellee's skin, which was alleged to be hypersensitive to X-ray current, and that this idiosyncrasy of appellee's could not have been discovered by appellant prior to the treatment. Other defenses were pleaded, consideration of which is not invoked.

The facts are that appellee was severely burned by an X-ray current while being treated professionally by appellant, who was a practicing physician and an expert in treating skin diseases with the X-ray. The controlling issue of fact made by the evidence is whether the injury was caused by one or more of the acts of negligence alleged by appellee or whether the injuries were suffered because appellee's skin was hypersensitive to the X-ray current. Naturally whether or not appellee did in fact have a hypersensitive skin was an issue. There was evidence of the extent of the injury and loss.

The first and second assignments assail the court's general charge because it did not affirmatively submit to the jury appellant's defense that the proximate cause of the injury was the hypersensitive skin of appellee.

The court's charge defined "negligence" to be the failure to exercise ordinary care, defined "ordinary care," and further instructed to find for appellee if the jury believed from the evidence that appellant was negligent as alleged and believed that such negligence was the proximate cause of the injuries; otherwise to find for appellant. The defense of abnormal skin made by appellant's pleading and evidence was not affirmatively submitted. Appellant, by timely objection made in due form, complained of this omission. The rule that it is error to fail to affirmatively submit to the jury a defendant's defense, which is supported by pleading and evidence, is established, and does not seem to be disputed by appellee's counsel. M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538; Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318; M., K. & T. Ry. Co. v. Renfro, 83 S. W. 21; T. & P. Ry. Co. v. Dawson, 34 Tex. Civ. App. 240, 78 S. W. 235; Johnson v. Johnson, 38 Tex. Civ. App. 385, 85 S. W. 1023; Dallas Ry. Co. v. Conn, 100 S. W. 1019; Epperson v. I. & G. N., 59 Tex. Civ. App. 66, 125 S. W. 117; Posener v. Harvey, 125 S. W. 356; M., K. & T. Ry. Co. v. Burk, 146 S. W. 600; Bangle v. M., K. & T. Ry. Co., 140 S. W. 374; Baker v. Williams, 198 S. W. 808; M., K. & T. Ry. v. Jamison, 27 S. W. 1090.

Neither is there any question that the issue that hypersensitive skin was the proximate cause of the injury was presented by appellant's pleading and evidence. There is, furthermore, no pretense that this defensive issue was affirmatively...