Moss v. Rishworth

• Citation: 222 S.W. 225
• Decision Date: 02 June 1920
• Docket Number: (No. 132-3025.)
• Parties: MOSS et al. v. RISHWORTH.
• Court: Supreme Court of Texas

222 S.W. 225

MOSS et al. v. RISHWORTH.

(No. 132-3025.)

Commission of Appeals of Texas, Section A.

June 2, 1920.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by William H. Rishworth against Robert E. Moss and another. Judgment for defendants was on plaintiffs' appeal reversed and remanded by the Court of Civil Appeals (191 S. W. 843), and defendants bring error. Judgment of Court of Civil Appeals affirmed.

See, also, 159 S. W. 122.

H. C. Carter, Champe G. Carter, Randolph L. Carter, and Perry J. Lewis, all of San Antonio, for plaintiffs in error.

Leo Tarleton and Ryan & Matlock, all of San Antonio, for defendant in error.

SPENCER, J.

Defendant in error, William H. Rishworth, sued plaintiffs in error, Robert E. Moss and Lewis K. Beck, for performing an operation upon his eleven year old child, Imogene, alleging that the operation, which resulted in the death of the child, was performed without his consent.

Imogene lived with her parents at Center Point, 60 miles distant from San Antonio. On May 8, 1910, the father placed her in the immediate care and custody of her adult sister, Clara, and permitted her to go with her to San Antonio. Clara, who had had three years' experience in training to become a graduate nurse, took Imogene to Dr. Moss, stating to him that she had brought her down to have her examined to ascertain whether an operation was needed for the removal of adenoids, explaining that the child had difficulty in breathing and was subject to attacks of rheumatism. An examination by Dr. Moss disclosed badly diseased tonsils and the appearance of adenoids, and he informed them that a real necessity existed for an operation to remove the diseased tonsils and adenoids.

Having agreed upon a date for the operation, Imogene returned with Clara and another sister, Nellie, who had had two years' training as a nurse. After an examination of the heart, an anesthetic was administered, and the tonsils and adenoids removed; but, before coming from under the influence of the anesthetic, the child died.

Defendant in error by amended pleading abandoned all allegations of negligence and unskillfulness, and relied for recovery solely upon the ground that the operation was without his consent. The court instructed the jury that if plaintiffs in error, without the consent of the parents, operated upon the child, using an anesthetic, and that she died as the result of the operation or the effect of the chloroform or both, to find for the defendant in error, without regard to any question of negligence or unskillfulness.

The jury returned a verdict for the plaintiffs in error, and a judgment was rendered in their favor. Upon appeal the Court of Civil Appeals held that the plaintiffs in error failed to show that the adult daughters or either of them had any authority, expressed or implied, to have the operation performed upon the minor sister. The court also held that, as the child, on account of her minority, could not, and the parents did not, give consent, had she survived the operation, she would have had a cause of action as for a technical assault and battery, and that therefore the parents, in virtue of article 4695, R. S. 1911, have a cause of action. 191 S. W. 843. The writ was granted upon application referred to the Committee of Judges.

The Court of Civil Appeals in the exercise of its power having reversed and remanded the judgment of the trial court upon the theory that the verdict in favor of plaintiffs in error was unauthorized by the evidence, its conclusion on the facts will not be disturbed, nor will its judgment be reversed, unless it has committed errors of substantive law...