Rishworth v. Moss

• Decision Date: 06 December 1916
• Docket Number: (No. 5732.)
• Parties: RISHWORTH v. MOSS et al.
• Court: Texas Court of Appeals

191 S.W. 843

RISHWORTH v. MOSS et al.

(No. 5732.)

Court of Civil Appeals of Texas. San Antonio.

December 6, 1916.

On Motion for Rehearing, February 14, 1917.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by William H. Rishworth against Robert E. Moss and another. Judgment for the defendants, and plaintiff appeals. Reversed and remanded, and motion for rehearing overruled.

Leo Tarleton and Ryan & Matlock, all of San Antonio, for appellant. H. C. Carter, Champe G. Carter, R. L. Carter, and Perry J. Lewis, all of San Antonio, for appellees.

MOURSUND, J.

William Rishworth, on September 16, 1910, sued Robert E. Moss and L. K. Beck for damages alleged to have been sustained on account of the death of his daughter, Imogene, which occurred within a few minutes after an operation had been performed upon her for the removal of adenoids and tonsils. The original petition contained charges of unskillfulness and negligence, as well as allegations to the effect that the operation was performed without the consent of plaintiff and his wife. The case was tried and a judgment rendered in favor of defendants, which was reversed by this court. See 159 S. W. 122. Upon the second trial plaintiff, after introducing the testimony of one medical expert, abandoned all charges of negligence, and relied solely upon his allegations to the effect that the operation had been performed without the request or the consent, express or implied, of plaintiff and his wife, and that no one had any authority from plaintiff or his wife to permit such operation to be performed. He alleged that Imogene was 11 years of age, and resided with him near Center Point, about 60 miles from San Antonio; that she was in good health, and made a social visit to San Antonio to be a guest of her two unmarried sisters for a week or ten days; that while in San Antonio defendants performed the operation upon her; and that she died from the application of chloroform and on account of the shock she sustained on account of the means employed in performing the operation. Defendants answered by general denial; allegations to the effect that Imogene was brought to the office of defendant Moss by her two adult sisters, and was in a very bad state of health; that she was suffering from adenoids and her tonsils were very much enlarged, inflamed, and diseased; that she was run-down and in a delicate condition; that her serious condition rendered her in pressing need of surgical attention to remove said adenoids and tonsils; that the operation was urgently necessary for the present health of the child, and was performed at the request and with the consent of said child and her two adult sisters; that Imogene was in charge of and under the control of Mrs. Jesse, an adult daughter of plaintiff, a woman of sound judgment and discretion, with authority from plaintiff to look after her needs, necessities, and comforts; that Mrs. Jesse, being a trained nurse and skilled in the disease of adenoids and tonsils, discovered that the child was in a bad state of health, and brought her to defendant Moss for examination, and had the express authority, as well as the implied and apparent authority, to provide for the care, comfort, and necessities of Imogene, and, acting under that authority she and Imogene requested defendant Moss to make an examination and operate upon Imogene for the removal of tonsils and adenoids; that defendant Moss believed Mrs. Jesse had the right and authority from her parents to do as she did, and that in all things she acted for the best interest of said minor sister, to save and preserve her health and happiness; that under all the facts and circumstances Mrs. Jesse had authority to act for plaintiff in providing Imogene with such medical and surgical services as her condition rendered necessary, and, in so doing, to represent plaintiff and that she acted with authority, both express and implied; that defendants had a right to believe that Mrs. Jesse was acting in the place of and for her father and had authority to provide the necessary medical attention for said child during the time she was in her charge. In addition, defendant Beck pleaded that at the time such operation was performed he was merely an employé of Dr. Moss for a salary, and did not operate on plaintiff's daughter, but made the examination of her condition and administered the anæsthetic as an employé of Dr. Moss. The plaintiff denied defendants' allegations. The trial resulted in a verdict and judgment in favor of defendants.

By his first assignment appellant contends that the verdict of the jury is contrary to the undisputed evidence. Appellant undertakes to set out all the testimony, and contends that it shows beyond dispute that there was no consent, express or implied, upon the part of himself or wife, to the performance of the operation. We find that appellee contends that appellant, by requesting, as his special charge No. 1, an instruction, which, if given, would have submitted the issue of consent, is estopped to question the sufficiency of the evidence to sustain the verdict returned upon that very issue. It appears that special charge No. 2 (presumably presented after No. 1, Railway v. Eyer, 96 Tex. 76, 70 S. W. 529) contains minute instructions concerning implied and apparent authority, and closes by stating that there is no evidence of authority, and therefore to return a verdict for plaintiff. It also appears that objections, in writing, to the charge of the court were duly filed, which were to the effect that there was no evidence to dispute the fact that neither plaintiff nor his wife ever consented to the operation, and that the evidence does not justify any finding of implied authority to perform the operation. The objections and special charges were all presented to the court before he read his charge to the jury. The record fails to disclose that special charge No. 1 was requested after plaintiff's objections to the charge of the court had been overruled, and we must assume that the requests and objections were filed at the same time. There is authority to the effect, we think, that in such a case plaintiff cannot be heard to complain of the action of the court. We find, however, that in the recent case of Paris & G. N. Ry. Co. v. Flanders, 179 S. W. 263, our Supreme Court expressed the opinion that the doctrine of invited error can easily be carried too far, and suggested that the responsibility for the court's action in the commission of hurtful errors ought not to be transferred to a litigant unless it is reasonably plain that through the action of his counsel he is equally chargeable with the mistake. In the cited case stress was laid upon the proposition that no contention appeared to have been made that the issue was not one proper to be submitted. In this case we conclude, in view of what is said in the above-cited case, we should overrule the contention that appellant invited the error, if error there be in holding there was sufficient evidence to go to the jury on the issue of consent. We will therefore consider the assignment of error.

Imogene Rishworth, a child 11 years of age, resided with her parents at Center Point, 60 miles from San Antonio. Center Point has railroad, telegraph, and telephone connection with San Antonio. The school Imogene attended closed on Friday, May 6, 1910, and on that day her two sisters, Clara and Nettie, aged, respectively, about 22 and 20 years, came from San Antonio to their parents' home. These young ladies had been in training at a hospital in San Antonio, with the view of becoming professional nurses. The elder, Clara, now Mrs. Jesse, had been at the P. & S. Hospital for three years, and was a very competent nurse. Her father testified that he had confidence in her ability as a nurse; that she was sensible and a girl of good judgment; that he had every confidence in her that a father had in his daughter. On Sunday, May 8, 1910, Clara and Nettie, who had been visiting their parents, returned to San Antonio, and Imogene accompanied them. Her parents testified that at that time their daughters were not in the hospital, and resided on Dallas street in San Antonio, and that Imogene was to pay them a social visit for a week or ten days. Imogene was a delicate child, and often had temperature. Her parents stated she had been suffering with rheumatism, the father fixing the time as probably during the previous winter, while the mother said it was 2 years prior to her death. They testified she was relieved by the application of liniment, and that she did not stay away from school on account of such rheumatism; that she attended school the entire term. Rishworth testified he had never had her tonsils examined; that his daughter Clara, about a year before Imogene's death, had stated that the child had adenoids and said they ought to be removed; that his wife objected on the ground that there was always danger in such operations, and nothing further was said; that his wife objected several times, objected all the time. He testified that he had never authorized any one to operate on his child, and was never requested to give authority to have an operation performed on her for adenoids or anything; that he did not know that such a thing was in contemplation. On cross-examination he testified as follows:

"On this occasion, in May, 1910, Miss Clara came to Center Point on Friday to visit me before they came down here on Sunday, and I permitted the child, Imogene, to come here with her on a visit of a week or ten days. That was done with my knowledge and consent. At that time I was on good terms with my daughter Clara, and I had confidence in her taking proper care of my daughter to a certain extent, but at the same time she was told, when she was leaving Center Point with the child, that if anything got the matter with my baby to let us know at once; that we would be down — we did not have confidence enough...