Rishworth v. Moss

• Decision Date: 28 May 1913
• Citation: 159 S.W. 122
• Parties: RISHWORTH et ux. v. MOSS et al.
• Court: Texas Court of Appeals

159 S.W. 122

RISHWORTH et ux. v. MOSS et al.

Court of Civil Appeals of Texas. San Antonio.

May 28, 1913.

On Motion for Rehearing, June 25, 1913.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by W. H. Rishworth and wife against Robert E. Moss and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

H. C. Carter and Perry J. Lewis, both of San Antonio, for appellees.

FLY, C. J.

Appellants filed a suit against Robert E. Moss and L. R. Beck, alleging that an operation was performed by appellees on their 11 year old daughter, Imogen, for "excessive growth in and on each side of her mouth to the rear and at or near the pharynx," which is known as adenoid growth of the tonsils, that appellants had not requested said operation, and knew nothing of it until informed that their child had died on the operating table, and it was further alleged: "That no person whomsoever had any authority to permit defendants to perform any operation whatever upon their child, and plaintiff and his wife had no knowledge whatever that any such operation was contemplated by any one, especially by defendants, or would take place at any time." Negligence was also charged in the manner of the operation. The appellees answered by general and special demurrers and general denial. Judgment was for appellees.

The evidence tended to show that the operation was undertaken at the instance and request of an adult sister of the deceased child, and that she was present when chloroform was administered and the operation performed by appellees. The child never recovered consciousness after being anæsthetized. It was not alleged or proved by appellees that appellants, or either of them, had any knowledge of the operation until after the death of the child, or that they, or either of them, consented to or authorized the operation. Under that state of facts the court instructed the jury: "If you believe from the evidence that the daughter of the plaintiff took the child to Dr. Moss for the purpose of being operated upon, and you believe that the defendants in good faith performed the operation with ordinary care, your verdict must be for the defendants, and this, too, notwithstanding there was no consent from the parent that the operation should be performed."

No briefs for appellants have been filed in this court, and the judgment must be affirmed unless there is fundamental error in the charge herein copied. Under the peculiar facts of this case, in which it is not contended that there was any great emergency, and that the life of the child was dependent upon an operation before the parents could be communicated with, if appellees were guilty of a tort in operating upon an infant without the knowledge or consent of her parents, the charge of the court went to the very foundation of the action, and deprived appellants of their right of trial by jury. That charge placed the liability of appellees on the same basis that it would have been if appellants had been present and consenting to the operation; that is, on the basis of negligence in the operation. That declaration of the law by the court struck at the very foundation of one of the issues presented by the pleadings, and in effect stated to the jury that the consent of the parents was not required if the minor was taken to the physicians by the daughter of appellants. In other words, the consent of the daughter to the operation was as effective as that of the parents, although they had never lodged any such authority in the daughter, and the operation was performed without their knowledge or consent. It that the law? We are of the opinion that it is not.

If the adult daughter had gone with the child to a dry goods store in the city of San Antonio and had purchased a bill of goods, no one would contend that her father would be liable for the bill, in the absence of authority from him to purchase the goods. If she had signed his name to a promissory note, he would not be liable in the absence of authority given to her to execute the note. In any kind of transaction involving property the daughter could not bind her parents, unless she acted under and by authority from them, either express or implied. The right of the child to bind the parent depends, not upon any principle peculiar to the relation of parent and child, but upon principles appertaining to the law of agency. The relationship can be used only in drawing the inference of agency upon slighter facts than as to other parties not so related. Tiffany, Per. & Dom. Rel. § 119. It follows that if the adult daughter in this instance had any authority to employ a physician to operate on her minor sister, she had that authority, not by reason of her relationship to the child or the parents, but by virtue of an agency, express or implied, from her parents, or at least one of them. Her authority must be viewed in the light of the rules and principles of the law of agency, rather than those rules connected with and arising out of domestic relations. It is not claimed that the daughter had been authorized to employ physicians, and the cause was not submitted to the jury on any such theory, but it was submitted on the broad proposition that the fact that the minor was taken to the physicians by an elder sister authorized the physicians to operate on the infant without the consent of the parents. Upon that theory, while the elder daughter could not bind her parents as to property transactions, she could bind them in matters in which the future happiness, yea the very life and limbs of their infant children, were concerned.

In the case of Bakker v. Welsh, 144 Mich. 632, 108 N. W. 94, 7 L. R. A. (N. S.) 612, 8 Ann. Cas. 195, a boy 17 years old, in company with two sisters and an aunt, consulted a physician as to a tumor on his ear. He then returned to his father's farm and afterwards went to the doctor in company with his sister, and an anæsthetic was administered, and he died before the operation was performed. His father sued for damages; one ground being want of consent of the father. A verdict was instructed for the defendant, and the Supreme Court of Michigan affirmed the judgment on the ground that "there is nothing in the record to indicate that, if the consent of the father had been asked, it would not have been freely given. There is nothing in the record to indicate to the doctors, before entering upon the operation, that the father did not approve of his son's going with his aunt and adult sisters, and consulting a physician as to his ailment and following his advice." The decision of the court is entirely unsatisfactory, and without valid reason for its rendition. The facts were such as to call for the intervention of jury, and should have been decided by the jury upon the facts. However, the facts in that case show that after consultation with the doctors the boy went back to his country home, presumably to consult with his father, and by a stretch of imagination the doctors might have concluded that the father was willing that the operation should be performed.

In the case of Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, a surgeon operated on the left ear of the patient, a woman, when she had requested an operation on the right ear. She had never felt anything wrong about the left ear. The Supreme Court of Minnesota held: "As remarked in Jaggard on Torts, 437, every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of privilege; and any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery. In the case at bar, as we have already seen, the question whether defendant's act in performing the operation upon plaintiff was authorized was a question for the jury to determine. If it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is...