Swartout v. Holt, 3192

• Decision Date: 14 October 1954
• Docket Number: No. 3192,3192
• Citation: 272 S.W.2d 756
• Parties: J. L. SWARTOUT et ux., Appellants, v. R. D. HOLT et al., Appellees.
• Court: Texas Court of Appeals

Page 756

272 S.W.2d 756

J. L. SWARTOUT et ux., Appellants, v. R. D. HOLT et al., Appellees.

No. 3192.

Court of Civil Appeals of Texas, Waco.

Oct. 14, 1954.

Rehearing Denied Nov. 24, 1954.

Fitzpatrick & Dunnam, W. V. Dunnam, Jr., Waco for appellants.

B. F. Word, Meridian, C. O. McMillan, Stephenville, for appellees.

TIREY, Justice.

Appellants brought this action for damages grounded on allegations of malpractice against Drs. R. D. Holt and J. T. Archer, Jr., physicians and surgeons engaged in the practice of medicine as partners in Meridian, Texas. Appellants alleged that in February, 1952, Mrs. Swartout took her fifteen year old daughter, Elvira Louise, to the hospital and clinic of appellees for medical attention; that their daughter complained of pain in her abdomen and side, and appeared to be slightly nauseated; that appellee, Dr. R. D. Holt, examined the child and advised submission of the child to operative surgery, and a date was set for 8:00 o'clock p. m., February 28, 1952; that the mother at that time advised Dr. Holt that they objected to the use of ether as an anesthetic and explained fully to him the results of a prior operation, at which time the child had undergone a tonsillectomy and that the physician performing the operation had used ether as an anesthetic and the child had collapsed and 'passed out' while they were attempting to bring her under the effects of ether, and that it was necessary for the doctor doing the tonsillectomy to give her oxygen and artificial respiration in order to revive her; that Dr. Holt then explained to the child that he would give her a spinal anesthesia; that Dr. Holt failed to heed the advice and warning that plaintiffs had given to him concerning the child's sensitivity to ether, and breached his promise to plaintiffs that he would not give the child ether, in that when she was taken to the operating room the patient was given ether by Dr. Holt, and as a proximate result of giving the child ether she suddenly 'became cyanotic and cardiac arrest occurred, causing her to cease respiration, and as a proximate result of said ether she died in defendant's hospital on the 2nd day of March, 1952.' Appellants specifically alleged ten separate grounds of negligent conduct proximately resulting in death to their child. It is our view that only (a) is pertinent here: '(a) defendants deliberately and wilfully failed and refused to consider and heed the warning that said child was sensitive to and could not take ether without imminent danger of death as a result thereof.'

The appellees denied the allegations contained in plaintiffs' pleading and further specially answered in part, '* * * these defendants say that if plaintiff, Gladys Swartout, did in fact know at the time she brought the child, Elvira Louise Swartout, to the defendants for an operation, that said child was allergic to ether as alleged in plaintiffs' petition, she, the said plaintiff, did not so advise these defendants, * * * and that her failure to so advise these defendants was negligence, which negligence was a proximate cause of whatever injury may have resulted to said child from the use of ether as an anesthetic.'

The jury, in its verdict, found that Dr. Holt, prior to the time he began the administration of ether to the patient, was not informed by her mother of her previous tonsil operation and the effect and the result of the administration of ether to her at the time of such tonsil operation; that plaintiff, Gladys Swartout, failed to advise Dr. Holt fully that her daughter was allergic to ether prior to the time Dr. Holt began the administration of the ether in preparing for the operation; that the failure of the plaintiff, Gladys Swartout, to advise Dr. Holt that her child was allergic to ether was not negligence; that the death of the child was the result of an unavoidable accident; that the plaintiffs have not suffered actual pecuniary loss as a proximate result of their daughter's death.

The judgment followed the verdict of the jury and the decree provided that plaintiffs take nothing by their suit against appellees, and awarded all costs against plaintiff, J. L. Swartout. Plaintiffs seasonably filed their amended motion for new trial, which was overruled, and they have perfected their appeal to this court. Appellants have assailed the judgment entered by the trial court on what they designate as ten points. We think that Point 2 only is pertinent here and it will hereafter be stated and discussed.

Our Supreme Court in the recent case of Bowles v. Bourdon, Tex.Sup., 219 S.W.2d 779, 782, made this statement of the rule: 'It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient's injuries. (Citing many cases.)' Our Supreme Court has not seen fit to change the rule here stated and we think it is applicable and controlling here in view of the pleadings and the findings of the jury. See also opinion of this court in Christian v. Galutia, Tex.Civ.App., 236 S.W.2d 177 (n. r. e.).

As we understand appellants' cause of action, it is grounded solely on the theory that Mrs. Swartout fully explained to Dr. Holt the nature, symptoms and all the reactions that her daughter had when she had the tonsillectomy performed on her in 1942. The case was fully developed and the trial court submitted the cause to the jury on such theory. We have given much consideration to this cause and have made a most careful examination of all of the testimony tendered, and it is our view that the evidence is sufficient to sustain the answers of the jury thereto. We are of the further view that the court's charge correctly submitted the cause to the jury. Therefore, the judgment appealed from must be affirmed unless appellants have been denied their constitutional right of having their cause submitted to a fair and impartial jury, which will be hereafter discussed.

Appellants' Point 2 is: 'The court erred in overruling appellants' motion for new trial because the jury trying the case was not an impartial jury.' This question has given us much concern because of the factual situation which we will hereafter state fully.

This appeal is from a judgment entered in the second trial. The jury in the first trial being unable to agree, the court declared a mistrial. As we understand appellants' Point 2, it is to the effect that under all the facts and circumstances they were deprived of that fair and impartial trial by jury as provided by our Constitution and Statutes because the proper tribunal was not established to try their cause owing to the fact that C. E. Dansby was not a fair and impartial juror under all the facts and circumstances. This phase of the case does not fit into any particular pattern and because the error complained of is grounded solely on Bill of Exception No. 1, we have copied substantially all of the pertinent parts of the bill, together with the court's qualifications thereon:

'None of the voir dire examinations of either party of said C. E. Dansby touching his qualifications as a juror was transcribed or taken down by the court reporter, and the court had and has no recollection of the questions propounded to said C. E. Dansby during said examination, nor the answers thereto given by him * * * upon the hearing of plaintiffs' first amended motion for new trial * * * W. V. Dunnam, Jr. (attorney for plaintiffs) testified that said juror, C. E. Dansby, testified on * * * voir dire examination by plaintiffs that he had never discussed this case with anyone and that he had no interest therein. * * * W. L. Gandt testified that this case was tried in this court at a former term approximately six months prior to the 9th of November, 1953, which trial resulted in a mistrial by reason of a hung jury; that he, the said W. L. Gandt, sat as a juror upon said trial, which resulted in a mistrial; that said former trial in which he sat as a juror lasted for three days; that at the conclusion of the first day's testimony, he and the other eleven jurors were permitted to go to their homes over night and that while at his home on said night the said C. E. Dansby telephoned him and attempted to discuss with him this case but that he, the said W. L. Gandt, told the said C. E. Dansby that he was on his honor not to discuss the case and his opinions thereof. B. H. Ekrut testified at said hearing on plaintiffs' first amended motion for new trial that he had discussed this case with the said C. E. Dansby prior to the 9th day of November, 1953. R. D. Holt, a defendant herein, testified that the wife of the said C. E. Dansby had in the past served as head nurse in his hospital * * * that C. E. Dansby was not called as a witness by either party at said hearing on plaintiffs' first amended motion for new trial, and no testimony or evidence was offered or admitted in rebuttal of or impeachment of or contradiction of any of the above testimony adduced at said hearing.'

The Court qualified the foregoing bill as follows:

'Counsel in his examination of the jurors did not inquire if any of their families had worked at the Holt Hospital. The language of the bill stating that the juror Dansby had talked about the case is not full enough and I have had the court reporter to copy the testimony on this point that was offered by plaintiffs and attach it hereto and make it a part of this bill.'

The testimony attached to the Bill of Exception is:

'My name is W. L. Gandt, and I live at Valley Mills.

'Q. Were you a member of the first jury that tried this case during the April term of this court? A. Yes, sir.

'Q. That was a hung jury? A. Yes, sir.

'Q. I believe that the first day, about one-half of the evidence was offered and...