Harvey v. Elder

• Decision Date: 21 November 1945
• Docket Number: No. 11563.,11563.
• Citation: 191 S.W.2d 686
• Parties: HARVEY v. ELDER.
• Court: Texas Court of Appeals

191 S.W.2d 686

HARVEY v. ELDER.

No. 11563.

Court of Civil Appeals of Texas. San Antonio.

November 21, 1945.

Rehearing Denied December 19, 1945.

Appeal from District Court, Gonzales County; Lester Holt, Judge.

Action by Mrs. Hattie B. Harvey against Dr. N. A. Elder for malpractice. Judgment for defendant, and plaintiff appeals.

Affirmed.

G. Woodson Morris and E. B. Simmons, both of San Antonio, for appellant.

Willis W. Ellison and Miller & Miller, all of Gonzales, for appellee.

NORVELL, Justice.

This is a malpractice case. Judgment below was for the defendant, Dr. N. A. Elder. Mrs. Hattie B. Harvey, the appellant, asserts here that the trial court erred in giving a peremptory instruction to the jury, for the reason that the motion therefor did not comply with the provisions of Rule 268, Texas R.C.P., which requires that, "A motion for directed verdict shall state the specific grounds therefor."

The motion filed in this case did not meet the requirements of the rule, and had the judge overruled the same, a point of error in an appellate court could not be predicated upon such action. Atlantic Greyhound Corporation v. McDonald, 4 Cir., 125 F.2d 849; Wright v. Carey, Tex.Civ.App., 169 S.W.2d 749; Patrick v. McGaha, Tex. Civ.App., 164 S.W.2d 236.

However, it does not follow that the granting of a motion that does not comply with Rule 268 and the rendition of a judgment based thereon constitutes reversible error. When questions of law only are involved, a trial court may at the conclusion of the hearing of the evidence take the case from the jury and proceed to render judgment. This may be done on the court's own motion and this power is in no way dependent upon a motion having been filed by a party litigant. Rudco Oil and Gas Co. v. Gulf Oil Corporation, Tex.Civ.App., 169 S.W.2d 791. We see no difference between the situation where the court on its own motion renders a judgment and one where the court upon an irregular or insufficient motion by one of the parties directs a verdict and renders judgment accordingly. In either instance, in determining the matter of reversible error, the question is the same, i. e., Was the prevailing party below entitled to judgment as a matter of law?

With regard to this question, the disposition of this appeal depends upon whether or not the evidence viewed in the light most favorable to appellant affords a factual basis for the cancellation of a written instrument which purports to be a compromise and settlement of all claims which Mrs. Harvey had against Dr. Elder.

Dr. Elder performed surgical operations upon Mrs. Harvey on May 12, 1940, July 28, 1942, and September 28, 1942. On March 14, 1943, appellant underwent a further surgical operation at the Robert B. Green Hospital in San Antonio, Texas.

The hospital report of this last operation contained the following statement: "A very interesting case has been solved. A heavy gauze sponge 2 feet in length was removed by gentle traction from pelvis through draining sinus. An old pack with bits of necrotic tissue adherent apparently placed in pelvis during original operation for hemostatic purposes. Patient should now have uneventful recovery. Pack was quite large enough to account for tumor mass palpable in lower left quadrant."

Mrs. Harvey secured a copy of this report, went to Nixon, Texas, where Dr. Elder resided, and showed him the report. On November 20, 1943, Mrs. Harvey executed the following release before a Notary Public of Gonzales, Texas, viz.:

"The State of Texas

"County of Gonzales

"To Whom It May Concern:

"Whereas Dr. S. D. Conally and Dr. Trevino, Physicians and Surgeons at Robert B. Green Memorial Hospital in Son Antonio, Texas, have made a statement following an operation on me on or about Mch. 14, 1943, that a piece of gauze was found in my lower left pelvis and that this gauze had caused me lots of suffering and probably was the cause of two later operations made in 1942 by Dr. N. A. Elder. Dr. Elder denies all of this however. Said Dr. N. A. Elder to make amends for any apparent accident, if this sponge or gauze should have been left in said Hattie B. Harvey's pelvis, does hereby cancel and release one certain Deed of Trust Note and Deed of Trust in the amount of Four Hundred Seventy Five and No/100 Dollars ($475.00) dated October 1, 1942, and due on or before two years from that date, together with any and all interest due on same in addition to this does this date pay to me cash in hand in the amount of Twenty-Five Dollars ($25.00), receipt of which is hereby acknowledged. The cash payment of above Twenty Five Dollars is given as a reimbursement of any expense that I may have had or may have for any other examination or treatment.

"In consideration of the cancellation of the above mentioned Deed of Trust Note and payment to me of the Twenty Five Dollars ($25.00) cash I hereby release said Dr. N. A. Elder personally and as owner of Crest View Hospital, Nixon, Texas, together with any and all attendants of said Hospital from any and all liability either from accident or negligence in the said operation, in which it is alleged that the sponge or gauze was left in my abdomen, and I do not propose, expect or intend to take any steps to recover any further damages for the unnecessary operation or pain suffered as the result of the above mentioned condition.

"Signed and acknowledged by me this the 20th day of November, 1943.

                              "Mrs. Hattie B. Harvey
                

"Sworn to and subscribed before me this the 20th day of November, A. D. 1943.

                                "J. F. Wood, Jr
                "(L.S.)          Notary Public Gonzales
                                   County, Texas."
                

Mrs. Harvey's version of events relating to the execution of this release, as stated in her brief filed in this Court, is as follows:

"That when she went to see Dr. Elder she showed him the copy of this (Robert B. Green Hospital) chart that she looked at a moment ago; that his reaction at that time was that he acted very funny, like a wild animal—walking around the office, around several times; that when she first showed him the copy of the chart he said, `that gauze has been a...