Traylor v. Goulding
| Decision Date | 11 July 1973 |
| Docket Number | No. B--3912,B--3912 |
| Citation | 497 S.W.2d 944 |
| Parties | Rita E. TRAYLOR, Individually and as Next Friend of Dwayne Alan Traylor, a Minor, Petitioners, v. Dr. Joseph C. GOULDING et al., Respondents. |
| Court | Texas Supreme Court |
John H. Holloway, Houston, for petitioners.
Andrews, Kurth, Campbell & Jones, Frank B. Davis and Thomas L. Schubert, Houston, for respondents.
This is an appeal from a medical malpractice suit initiated by the Petitioners against the Respondents.
On March 8, 1966 Dwayne Alan Traylor swallowed a small chicken bone. He was immediately taken to the hospital by Mrs. Traylor who had seen the incident; however, upon examination by Dr. Goulding, no abnormality was discovered. Because the child later experienced coughing, fever and poor breathing he was examined, treated and hospitalized on several occasions before the bone was actually discovered and removed from his lung on June 4, 1966.
The jury found that the failure of Dr. Goulding to take an x-ray of the child was negligence, and the jury found that the failure of Dr. Goulding to advise Mrs. Traylor of the possibility that the bone could be in the child's lung was negligence. The jury failed to find that either of Dr. Goulding's omissions proximately caused any damage to the child. The jury also failed to find as facts certain omissions alleged against Dr. R. G. Smith. The trial court rendered judgment that Plaintiffs take nothing and the court of civil appeals affirmed.
Petitioners presented points of error to the court of civil appeals urging that the jury's negative findings or answers of 'We do not' to the special issues above referred to, on which Petitioners had the burden of proof, were so against the great weight and preponderance of the evidence as to be wrong and unjust. In holding that these points presented nothing for the court to review, the court of civil appeals stated: '(T)he negative answer of the jury to such an issue need not be supported by affirmative evidence, and to complain on appeal of such an answer a party must contend that the evidence establishes the answer as a matter of law.' 497 S.W.2d 468.
Petitioners contend that the court of civil appeals' holding in this regard amounts to an error of law in that it is a refusal by the court to exercise its fact-finding jurisdiction. We sustain this contention.
Although the question of whether or not the jury's answer to the special issue is against the great weight and preponderance of the evidence is one of...
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