Smith v. Farrington

• Decision Date: 20 June 1928
• Docket Number: (No. 2900.)
• Parties: SMITH et al. v. FARRINGTON.
• Court: Texas Court of Appeals

Page 317

8 S.W.2d 317

SMITH et al. v. FARRINGTON.

(No. 2900.)

Court of Civil Appeals of Texas. Amarillo.

June 20, 1928.

Appeal from District Court, Knox County; J. H. Milam, Judge.

Suit by W. A. Smith and others against W. P. Farrington. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

Conforming to answer to certified questions, 6 S.W.(2d) 736.

Taylor, Muse & Taylor, of Wichita Falls, for appellants.

D. J. Brookreson, of Benjamin, and Cooper & Lumpkin, of Amarillo, for appellee.

HALL, C. J.

The appellants sued Dr. Farrington, alleging in substance in their first amended original petition that prior to August 3, 1925, the appellee was and had been, for some time, a practicing physician and surgeon at Munday, Knox county, capable of diagnosing diseases, including diseased tonsils, and held himself out to the public as qualified to remove diseased tonsils, which he did in his practice for hire; that appellants' daughter, Miss Ruby Smith, prior to said date, suffered constantly with sore throat, and appellants, desiring to have her throat examined by appellee and to have him treat her, if treatment was necessary, took her to appellee's office in Munday for an examination; that appellee diagnosed her trouble as being tonsilitis and advised appellants that her tonsils were badly infected and in order to effect a cure, it would be necessary to remove the infected tonsils. They employed appellee to remove their daughter's tonsils, and on August 3 appellee removed both tonsils and in doing so negligently and carelessly used some instrument with which he scraped her throat, causing it to bleed profusely, and thereafter, by reason of appellee's negligent failure to properly attend their said daughter, hemorrhage resulted, and as a result of the operation, their daughter died the following morning about 6 o'clock. It is further alleged that prior to the operation the deceased was in good health, strong, cheerful and happy, was a great comfort, consolation, and help to appellants; that at the time of her death, she lacked nine months and eight days of having attained her majority; that her services for said period would have been worth $25 per month, over and above all costs of maintaining her during said period, the value of such services aggregating $230. It is further alleged that by reason of the death of their daughter appellants were compelled to expend and did expend the sum of $125 for a coffin, $25 for a shroud, $50 for having her body embalmed, and $25 for incidental expenses, making a total of $225 expenses incident to the funeral and burial of their said daughter; that they were further actually damaged in that they necessarily expended $180 for the erection of a tombstone over her grave and spent $25 additional for flowers, making a total sum of $660 actual damages. They also sued for $15,000 as exemplary damages on account of appellee's gross negligence, unskillfulness, and carelessness in the treatment of their daughter.

The court sustained...