Lee v. Moore

• Decision Date: 22 November 1913
• Citation: Lee v. Moore, 162 S.W. 437 (Tex. App. 1913)
• Parties: LEE v. MOORE.
• Court: Texas Court of Appeals

162 S.W. 437

LEE v. MOORE.

Court of Civil Appeals of Texas. Dallas.

November 22, 1913.

Rehearing Denied January 10, 1914.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by S. E. Lee against H. Leslie Moore. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Gibson & Callaway, of Dallas, for appellant. Thomas & Rhea and J. D. Hunt, all of Dallas, for appellee.

TALBOT, J.

Appellant, S. E. Lee, sued appellee, H. Leslie Moore, for malpractice, claiming damages for injuries to his wife while confined in childbirth on account of alleged negligence upon the part of appellee, and also alleged negligence and want of professional skill upon the part of one Dr. A. D. Hardin, acting as appellee's agent or substitute. Appellee was a regular practicing physician, and held himself out to the public for the practice of his profession. Some time prior to February 6, 1911, appellant's wife being pregnant with child, appellant called upon appellee and arranged with him to treat her during her confinement. At night, on or about the 5th day of February, 1911, appellant's wife was stricken with illness occasioned by childbirth, and, at the instance of appellant, appellee called upon and undertook the treatment of said patient. Appellant alleged that, while his wife was critically ill, appellee, without cause or notice, abandoned the treatment of the case, and, without the knowledge or consent of appellant, sent as a substitute for himself one Dr. A. D. Hardin, a physician, youthful, inexperienced, and lacking in that degree of professional skill required of him by law. Appellant further alleged that on account of the negligence of appellee in failing to make a proper diagnosis of the patient, and his wrongful act in abandoning the treatment of her, and on account of the negligence of the said Hardin in failing to promptly attend said patient, and his lack of professional skill and ability, said patient received serious and painful injuries and suffered great physical pain and mental anguish, in addition to what she otherwise would have received and suffered, for which appellant prayed damages in the sum of $10,000. Appellee answered by general denial, and special answer to the effect that, owing to the fact that he expected to attend court at Ft. Worth, and had other pressing professional and business engagements, he was unable to continue the treatment of plaintiff's wife, and arranged with Dr. Hardin to assist him in treating said patient, and further, that at the time Dr. Hardin called upon said patient, appellant was in a state of intoxication and flourished a pistol, threatening to do the said Hardin serious bodily harm and used profane language in the said Hardin's presence and hearing, and refused to permit the said Hardin to call appellee to his assistance in the treatment of said patient, and that, by such acts and conduct upon the part of appellant, he contributed to and caused any injuries that his wife may have received. A jury trial resulted in a verdict and judgment in favor of appellee and appellant's motion for a new trial being overruled he appealed.

The case was affirmed at the last term of this court, without a consideration of appellant's assignment of error, and in due time he filed a motion for a rehearing. We were of opinion that, inasmuch as neither of the assignments disclosed that the error therein complained of was distinctly set forth in a motion for a new trial in the district court, and did not point out the page of the transcript or particular clause of the motion in which the error was complained of in accordance with rules 24 and 25 (142 S. W. xii) as recently promulgated by the Supreme Court for the government of the Courts of Civil Appeals, such errors should be considered as waived. According to the opinion of the Supreme Court in Railway Co. v. Beasley, 155 S. W. 183, we were in error in so concluding, and under the authority of that case the assignments will now be considered, our former opinion withdrawn, and this opinion filed in lieu thereof.

The main questions presented for our decision arise under assignments of error challenging the correctness of the trial court's action in giving certain instructions to the jury and in refusing to give certain special charges requested by the appellant.

In the general charge of the court the jury were instructed that if the defendant failed to use ordinary care and diligence in looking after plaintiff's wife in so far as he did the work himself, or failed to use ordinary care in selecting a physician as a substitute for himself to act in taking care of plaintiff's wife, and that, as a proximate result of such failure, if any, to use ordinary care and diligence, plaintiff's wife was injured, then, and in either event, they should return a verdict for the plaintiff, unless they should find for the defendant under some succeeding paragraph of the charge or in the special charges given them. In a subsequent paragraph of the charge they were instructed as follows: "If you do not, from a preponderance of the evidence, so find that the defendant failed to use ordinary care and diligence in looking after plaintiff's wife, in so far as he did the work himself, or that he failed to use ordinary care and diligence in selecting a substitute for himself to act in taking care of plaintiff's wife, or if you fail to find that plaintiff's wife was injured on account of defendant's said failure, if any, to use ordinary care and diligence, then, and in either event, you should return your verdict for the defendant." After the case had been submitted to the jury and after they had retired to consider of their verdict, they returned into open court and asked the court to instruct them whether or not appellee, Moore, was required to furnish as his substitute a physician possessing the same degree of skill and qualifications as he himself possessed. In response to this request, and at the instance of the appellee's counsel, the court instructed the jury as follows: "In furnishing a substitute the defendant was only required to use ordinary care to furnish a physician possessing that degree of skill and ability as is usually possessed by physicians engaged in the general practice of medicine in the city of Dallas and vicinity." The appellant requested, among others, the following special charge, which was refused: "You are instructed, at the request of plaintiff, that, while a physician and surgeon undertaking the treatment of a patient does not guarantee results or to effect a cure, yet he is required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing practicing in similar localities, and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning, and to act according to his best judgment in the treatment of the case. In this connection you are further instructed that the test of professional skill and learning, as applied to Dr. Hardin in this case, is the same as is hereinabove defined, and he was required by law to exercise reasonable care and diligence in the treatment of the case. Now, bearing in mind the above instructions, you are further instructed that if you find that Dr. Hardin did not possess the requisite degree of professional skill, or if he failed to exercise the care and diligence required of him in the treatment of the case, and if you further find that, on account of such lack of skill upon the part of Dr. Hardin, if any, or if on account of the failure to exercise the care and diligence required of him, if any, plaintiff's wife received injuries which she otherwise would not have received, and in consequence thereof suffered physical and mental pain which she otherwise would not have suffered, then, if you so find and believe, plaintiff is entitled to recover of defendant damages for such injuries so received by his wife, if any." The giving of the foregoing charges mentioned and the refusal of appellant's said special charge is assigned as error.

The contention of appellant, in substance, is that under the facts in this case it was the duty of appellee, in abandoning the treatment of appellant's wife and sending a substitute to treat her, to select a physician possessing that degree of professional skill and learning ordinarily possessed by physicians in good standing, practicing in similar localities, and that appellee would be primarily liable in damages for any injury proximately resulting from a breach of such duty, regardless of the degree of care used in making such selection of the substitute physician, and would be so liable for any injury received by the patient proximately resulting from the negligence of the substitute physician.

On the other hand, appellee contends that the duty, which a physician in sending a substitute physician in his stead, owes to a patient is to exercise ordinary care to furnish a physician possessing that degree of skill and ability as is usually possessed by physicians engaged in the practice of medicine in the locality where the patient resides, and is not liable for...