Pedigo & Pedigo v. Croom

• Decision Date: 13 March 1931
• Docket Number: No. 814.,814.
• Citation: 37 S.W.2d 1074
• Parties: PEDIGO & PEDIGO v. CROOM.
• Court: Texas Court of Appeals

37 S.W.2d 1074

PEDIGO & PEDIGO v. CROOM.

No. 814.

Court of Civil Appeals of Texas. Eastland.

March 13, 1931.

Rehearing Denied April 24, 1931.

Appeal from District Court, Palo Pinto County; Sam M. Russell, Judge.

Action by H. C. Croom against Pedigo & Pedigo. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Ritchie & Ritchie, of Mineral Wells, and Touchstone, Wight, Gormley & Price, of Dallas, for appellants.

L. H. Flewellen, of Ranger, and Frank Sparks, of Eastland, for appellee.

HICKMAN, C. J.

The appellants, Drs. W. S. and P. C. Pedigo, are practicing physicians and surgeons at Strawn. On or about December 22, 1927, appellee sustained a fracture of the femur of his right leg and was taken to a hospital in Strawn and placed under the treatment of appellants. This suit was instituted by him to recover damages for alleged malpractice on the part of appellants in the manner of their treatment of his broken leg. Various grounds of negligence were pleaded. The case was submitted to a jury on special issues, and on the verdict judgment was rendered for appellee against appellants for $15,000 damages.

In a printed brief of 330 pages, besides several pages of index and alphabetical list of authorities, appellants present 54 propositions for reversal based upon 146 assignments of error. Supplemental briefs were also filed by appellants. Proposition 23, briefed on pages 174 to 181, will be considered first. Special issue No. 13 was as follows: "What sum of money, if any, if paid now, in cash, do you find would fairly and adequately compensate plaintiff, H. C. Croom, for the injury, if any, sustained by him in the treatment of his leg by the defendants, or either of them? Answer the amount in dollars and cents, if any. In arriving at the amount of damages, if any, sustained by H. C. Croom, as the direct and proximate result of the lack of skill, if any, and the negligence, if any, or either, if any, by the defendants, or either of them in their treatment of plaintiff's leg, you may take into consideration the evidence, if any, showing or tending to show if it does show or tend to show, the injury to the physical structure of the body, if any, of H. C. Croom; the pain, if any, suffered by him; the decrease, if any, in his ability to earn money, by reason of the injury, if any, which he may with reasonable certainty suffer in the future, if you find there will be any."

To this issue appellants timely presented, among others, the following objection and exception: "* * * Because said question does not exclude from the consideration of the jury the injury or probable consequence of injury sustained by H. C. Croom and being suffered by him prior to the time these defendants were engaged to treat him, and further because said question does not exclude that pain and suffering and loss of earning power past and future which would have been or might have been reasonably expected to be the natural consequence of his original injury."

Error is assigned to the action of the trial court in overruling this exception and objection. The evidence presents a situation where appellee was suffering from an infirmity before any of the alleged acts of negligence were committed by appellants. The most for which appellants could be charged would be the injuries sustained by appellee in addition to those which would have been sustained as a direct result of the broken leg. The injuries flowing from the original accident, and those flowing from the alleged negligence of appellants, were so connected and intermingled that appellants had the right to have the charge affirmatively limit the jury in its consideration to the injuries resulting alone from their negligence and excluding such injuries as were the result of the original accident. The rule is stated in 17 C. J. p. 1074, § 378, as follows: "Where plaintiff in a personal injury case has been suffering from a previous disability or infirmity, the court should take care to state clearly and fully the rule of recovery in such cases, and a refusal to so instruct is error."

Texas cases are cited in support of the text. In addition to the cases there cited, we shall call attention to other Texas authorities.

In the case of St. Louis S. W. Ry. Co. of Texas v. Johnson, 100 Tex. 237, 97 S. W. 1039, 1040, submitted on a general charge, where the cause of action was for personal injuries to the plaintiff's back, and there was some evidence of a prior injury to his back, our Supreme Court held it was error for the trial court to refuse to give the following instruction: "If you find that the plaintiff had been injured in his back prior to the time he claims to have been injured at Carrolton, or that he had any disease of the back prior to that time, and that he was suffering therefrom at the time of the alleged accident at Carrolton, and you further find that he was injured in the back at Carrolton while alighting from the train, and that the defendant is responsible for such injuries, and that the injuries received at Carrolton simply aggravated or increased his existing trouble, then the plaintiff would be entitled to recover, if at all, under the other instructions given you, only for the increase or aggravation of the troubles which existed at the time he received such injuries at Carrolton."

In the case of Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260, 261, where the action was for damages under the "death statute," our Supreme Court, speaking through Chief Justice Gaines, uses this language: "It is important therefore, in an action of this sort that the jury should not only be given instructions to allow a recovery as authorized by the language of the statute, but that they should also be instructed for what elements no recovery can be allowed."

In the case of Hines v. Kelley, 252 S. W. 1033, 1035, the Commission of Appeals, in an opinion approved by the Supreme Court, quoted at length from International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S. W. 328, and also from Gulf, C. & S. F. Ry. Co. v. Farmer, supra, and on the authority of these and other decisions held that a charge in an action under the "death statute," which expressly limited the plaintiff's recovery to "her pecuniary loss only," but did not affirmatively exclude the elements of grief, pain, and anguish, etc., was deficient. We quote from the Commission's opinion, as follows: "In passing upon the sufficiency of the charge, however, the...