Phillips v. Wright

• Decision Date: 25 January 1935
• Docket Number: No. 13034.,13034.
• Citation: 81 S.W.2d 129
• Parties: PHILLIPS v. WRIGHT.
• Court: Texas Court of Appeals

81 S.W.2d 129

PHILLIPS v. WRIGHT.

No. 13034.

Court of Civil Appeals of Texas. Fort Worth.

January 25, 1935.

Rehearing Denied March 8, 1935.

Error from District Court, Montague County; Vincent Stine, Judge.

Action by D. L. Phillips against E. W. Wright. To review a judgment for defendant, plaintiff brings error.

Affirmed.

Taylor, Muse & Taylor, of Wichita Falls, and Temple Yarbrough, of Bowie, for plaintiff in error.

Benson & Benson, of Bowie, and Seay, Malone & Lipscomb, of Dallas, for defendant in error.

BROWN, Justice.

This cause was instituted by appellant in the district court of Montague county against the appellee, a practicing physician and surgeon, alleging that appellant was severely injured by a bus owned by the North Texas Coach Company; that he was taken to appellee's hospital in Bowie, Tex., where appellee, who held himself out to the public as a skilled physician and surgeon, undertook to treat appellant.

Appellant alleged: That "the defendant in setting the bones in the plaintiff's leg carelessly and negligently set the same so that they would not knit together and make such a union as the same should make. That if the defendant had carefully examined the plaintiff's leg and the broken bones in his leg and had not carelessly and negligently set the bones in the plaintiff's leg as he did set the same and had set said bones after making a thorough examination of the same that the bones in the plaintiff's leg would have united and would have made such a union as the plaintiff could have and would have been able to use and walk upon the same." That he is now unable to walk thereon, and his condition was proximately caused by "the defendant's carelessness and negligence in treating this plaintiff."

Similar allegations are made as to appellant's ankle; and complaint is made that appellant received an injury to his neck, and complained of pain therein, but the appellee failed to X-ray his neck and to properly treat his neck; that he has grown steadily worse; that one leg is shorter than the other; and concludes his allegations with: "and that the carelessness and negligence upon the part of the defendant in the examination of plaintiff's injuries and in treating the same, was and is the direct and proximate cause and result of the plaintiff's condition at this time."

Appellant alleged that he was confined to appellee's hospital about six months, and was compelled to pay and did pay appellee $1,500 for his treatment therein; that but for appellee's negligence he would not have had occasion to remain in the hospital and on expense for more than four months; that he has lost twenty months from his business, and will lose about three years in the future, and has been damaged $250 per month for such fifty-six months' loss of time; that he has suffered and will continue to suffer mentally and physically from the negligence, carelessness, and unskillfulness of appellee, for which he asks damages in the further sum of $10,000.

Appellee answered, pleading that appellant brought suit in the district court of Montague county against the above-named bus company, in which appellant prayed for the recovery of all damages flowing to him by reason of the injuries received by him, when run down by the company's bus; that the suit was transferred to the district court of Wichita county, where a trial resulted in appellant's favor for a large sum of money; that the judgment thus obtained by appellant was compromised and settled, and a release executed by appellant in which appellant and his attorneys, in releasing the parties, used the following language: "Do hereby release and forever discharge the said North Texas Coach Company, Inc., and the Fidelity and Casualty Company of New York City, N. Y., and the Excess Insurance Company of America from any and all liability of every kind and character whether known or unknown growing out of or incident to the accident which the said D. L. Phillips had on or about the 4th day of January, 1931, with the coach of the North Texas Coach Company, Inc." That such settlement and release effectually released appellee from any responsibility to appellant upon the cause of action attempted to be set up against appellee by appellant. Appellee denied all allegations made by appellant, and denied liability in any event.

The record discloses that appellant was injured on January 4, 1931, and was under the care and treatment of appellee for a little more than six months; that he consulted and employed other physicians and surgeons, who examined and treated him and some of whom advised an operation. All of this occurred before the instant suit was brought.

The record further discloses that appellant sought to recover against the Coach Company all of the damages he seeks to recover in the instant suit, but that there was no allegation of malpractice upon the part of his surgeon, the appellee.

In view of the conclusion reached by us, we do not consider it necessary to notice the demurrers and special exceptions of the parties, the trial court's rulings thereon, and any assignments of error relating thereto.

This was a jury trial; and when the introduction of evidence was concluded by all parties, appellee moved for a peremptory instruction,...