Stewart v. Janes
| Decision Date | 21 June 1965 |
| Docket Number | No. 7510,7510 |
| Citation | 393 S.W.2d 428 |
| Parties | Henry STEWART, Individually and on Behalf of His Wife, Maybelle Stewart, Appellants, v. F. W. JANES, Appellee. |
| Court | Texas Court of Appeals |
Splawn & Maner, Lubbock, for appellants.
Crenshaw, Dupree & Milam, Lubbock, Potter, Gowdy & Kirk, Littlefield, for appellee.
This is a malpractice suit brought by Henry Stewart individually and on behalf of his wife, Maybelle Stewart, against Dr. F. W. Janes for damages allegedly resulting from an operation performed by Dr. Janes on Maybelle Stewart on July 10, 1945, from defendant's alleged negligence in leaving a gauze pad in the incision. This suit was filed on November 14, 1963. The defendant answered contending the suit was barred by the two-year statute of limitation. The defendant also filed a motion for summary judgment on the basis that the suit was barred by the two-year statute of limitation and that defendant was entitled to judgment as a matter of law. After a hearing was had on said motion the court granted defendant's motion for summary judgment. From that judgment the plaintiff perfected this appeal.
The parties herein will hereafter be referred to as they were in the trial court. The plaintiff presents this appeal upon two points of error as follows:
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN HOLDING THAT THE PLAINTIFF'S CAUSE OF ACTION WAS BARRED BY THE TWO YEAR STATUTE OF LIMITATION WHICH COMMENCED TO RUN ON JULY 10, 1945.
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR BY SO DOING THE APPELLANT WAS DENIED THE DUE PROCESS OF LAW AS PROVIDED BY THE CONSTITUTIONS OF TEXAS AND THE UNITED STATES.'
(1, 2) We realize the hardship of this kind of case but settled principles of law cannot be disregarded in order to remove the hardship of special cases. We think the rule of stare decisis requires this court to abide former precedents where the same points arise in litigation. This is necessary in order to have declared and determined the proper rule so that such matters might not be altered or swerved from by a judge having a different view. We must not and cannot determine such matters as here involved according to our own private judgment as to the right or wrong of a rule to follow but must follow the determined rule and law of this state. We are of the opinion, and so hold, that the matters here involved have been determined in this state contrary to the contention of the plaintiff.
It is stated in the case of Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878, 879 (opinion adopted by S.Ct.) as follows:
...
To continue reading
Request your trial
-
Leal v. C. C. Pitts Sand & Gravel, Inc.
...Swilley v. McCain, 374 S.W.2d 871 (Tex.Sup.1964); Slocum v. Galveston County, Tex.Civ.App., 410 S.W.2d 487, no writ; Stewart v. Janes, Tex.Civ.App., 393 S.W.2d 428, writ ref'd; Tunnell v. Otis Elevator Co., Tex.Civ.App., 400 S.W.2d 781, 783, writ ref'd, n.r.e., Tex., 404 S.W.2d 307; Campbel......
-
Gaddis v. Smith, A--11825
...This case requires that we reexamine our holdings in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942), and Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ.App.1965, writ ref'd.). These cases hold that a cause of action accrues 1 when the incision is closed, rather than when the negligent ac......
-
Nichols v. Smith, 17365
... ... 5526, V.A.C.S., is the limitation statute that applies to medical malpractice cases. Stone v. Morris, supra; Coffman v. Hedrick, supra; Stewart v. Janes, 393 S .W.2d 428 (Amarillo Tex.Civ.App., 1965, writ ref., 383 U.S. 962, 86 S.Ct. 1233, 16 L.Ed.2d 304; 384 U.S. 923, 86 S.Ct. 1372, 16 ... ...
-
International Harvester Co. v. Kesey
...departure from the long standing decision in Carrell et al. v. Denton, 138 Tex. 145, 157 S.W.2d 878 (Tex.Comm'n App.1942) and Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ.App., writ ref'd). See Gaddis et vir. v. Smith et al., 417 S.W.2d 577 (Tex.Sup.Ct.1967) wherein the applicable rule as to f......