Opinion
No. 6621.
Decided April 29, 1936. Rehearing overruled June 24, 1936.
1. — Special Issues — Damages.
In a suit for damages as the result of an X-ray burn it was not error for the trial court to refuse to give special issues requested by defendant to the effect that plaintiff's condition was the result of eczema or some disease other than the application of the X-ray, as said charges were not correct and if answered in the affirmative would not have been a complete defense to plaintiff's alleged cause of action, the real question being an inquiry as to what extent, if any, the eczema contributed to plaintiff's injury and damages.
2. — Special Issues — Pleading.
If the special issues asking if plaintiff's condition was the result of some disease other than the application of X-ray, requested by defendant, had been in correct form it would have been proper to have submitted them under defendant's plea of general denial, although he had not specially plead the defense of eczema.
3. — Appeal and Error — Assignment of Error.
An assignment of error complaining that the trial court erred in refusing a requested charge does not, such requested charge being erroneous, present the question of whether the court committed error in not submitting the issue in some form.
4. — Appeal and Error.
An assignment in defendant's petition for writ of error relative to the explanatory charge given by the trial court in connection with the special issue which complained that it assumed that the defendant had been negligent and that plaintiff had been damaged, was not well taken when the record shows that the only proposition submitted in the Court of Civil Appeals was to the effect that it was a general charge which did not assume defendant's negligence or plaintiff's damage.
Error to the Court of Civil Appeals from the Fourth District, in an appeal from Bexar County.
Suit by Mrs. Rachel La Grone against Dr. John W. Kenney, to recover damages for personal injuries alleged to have been caused by his negligence in the operation of an X-ray machine. A judgment in favor of plaintiff in the trial court was affirmed by the Court of Civil Appeals ( 62 S.W.2d 600), and Dr. Kenney has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Judgment of Court of Civil Appeals is affirmed.
Bryan Maxwell, of Waco, T. M. West and Nat L. Hardy, both of San Antonio, for plaintiff in error.
The evidence clearly raising the issue that the disabilities of the plaintiff were the result of a disease rather than X-ray burns, and such evidence having been properly admitted under a general denial the defendant (plaintiff in error in appellate court) was entitled to an affirmative submission of the theory of the case to the jury and the refusal of the court to submit such charge was error. Hoover v. Smallwood, 45 S.W.2d 702; Missouri, K. T. Ry. Co. v. McGlamory, 89 Tex. 635; Pidigo v. Croom, 37 S.W.2d 1074; Galveston, H. S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S.W. 534.
R. B. Russell and Dwyer Groce, all of San Antonio, for defendant in error.
Defendant in error Mrs. Rachel LaGrone, who will be designated plaintiff, brought this suit against Dr. John W. Kenney, who will be designated defendant, for damages. The basis of her complaint was that Dr. Kenney was negligent in the administration of X-ray treatments by reason of which she was burned. The nature of her injuries were alleged to be as follows:
"Plaintiff says that as a direct and proximate result of the said acts of negligence on the part of the Defendant, her head was so badly burned by the rays from the said machine that all of her hair came out, and that her scalp was badly burned, that her face was burned, that her breast was burned over a large area, and her left arm burned below the elbow. That all of these portions of her head and body are inflamed and in a sore condition, that they will not permanently heal, that Plaintiff's general health has been greatly impaired, that she has suffered great mental and physical pain, and will in the future so suffer, and said injuries are serious and permanent."
The defendant answered by general demurrer and general denial and a special plea that if the plaintiff was injured at all it was due to acts of some other person and not of himself.
In response to special issues the jury found that in the spring of 1931 the defendant administered unto plaintiff applications of X-ray treatment; that in so administering the X-ray he exposed plaintiff's head and body to the effects of the machine for too long a time; that in doing so defendant was negligent, and that the negligence of defendant in this particular was the proximate cause of plaintiff's injuries. A judgment in favor of plaintiff in the district court was affirmed by the Court of Civil Appeals after requiring a remittitur. 62 S.W.2d 600.
The principal assignments presented by defendant in application for writ of error complain of the failure of the trial court to give certain special issues requested by him. It is undisputed that at the time plaintiff called upon Dr. Kenney for medical treatment she was suffering from eczema or some kindred ailment. The X-ray treatment was given for the purpose of counteracting this disease. Plaintiff furnished evidence showing that she had been burned by the X-ray treatment; that she had lost her hair, which at the time of the trial had been partially restored; that the skin on her face, arm and breast peeled off, leaving the surface sensitive and irritable, and that she had suffered physical and mental pain as a consequence of her injuries. There was proof by defendant tending to show that her condition at the time of the trial was due to eczema or some disease of that type.
1 The special issues requested by defendant and refused by the court were as follows:
"Is Mrs. Rachel La Grone's condition the result of a disease known as eczema?"
"Is Mrs. Rachel La Grone's condition the result of some disease other than the application of the X-ray?"
It is obvious that these requested charges were not correct, and if answered in the affirmative would not have been a complete defense to plaintiff's alleged cause of action. Even if her condition at the time of the trial was due to eczema, nevertheless she could have suffered various injuries as a result of the X-ray burns, as claimed by her, and her condition could have been materially different at the time of the trial from what it was, as shown by her testimony, immediately after the treatment. It is undisputed that to some extent her condition was brought about by reason of the fact that she had eczema, as that was the ailment for which the X-ray treatment was administered. The question really resolved itself into an inquiry as to what extent, if any, the eczema contributed to the injury and damages suffered by plaintiff.
2 We do not agree with the Court of Civil Appeals that these issues were not proper because defendant had not specially pleaded the defense of eczema. If the requested issues had been correct we think it would have been proper to submit them under defendant's plea of general denial.
3 We are not called upon to decide whether or not the requested issues were sufficient to call the matter to the attention of the court, because there was no assignment that the court erred in failing to submit a correct issue to the jury. The only assignments submitted related to the failure of the court to give the particular issues requested. It is well settled that an assignment of error that the court erred in refusing a requested charge does not present the question whether (the instruction being erroneous) the court erred in not submitting the issue in some form. Clevenger v. Blount, 114 S.W. 868, affirmed in 103 Tex. 27, 122 S.W. 529; Hess v. Webb, 113 S.W. 618, affirmed in 103 Tex. 46, 123 S.W. 111; Parlin Orendorff Co. v. Miller, 25 Texas Civ. App. 190[ 25 Tex. Civ. App. 190], 60 S.W. 881; Walker v. Ry. Co., 151 S.W. 1142.
4 The only other assignments in petition for writ of error relate to the explanatory charge given by the trial court in connection with Special Issue No. 8. Defendant by these assignments complains that the court in each charge assumed that defendant had been negligent as alleged and assumed that plaintiff had been damaged as claimed by her. We are inclined to the view that these assignments are not well taken. However, we find that the only proposition submitted in the Court of Civil Appeals with reference to this charge was one to the effect that it was a general charge, and there was no complaint that it assumed the negligence of defendant or assumed that plaintiff had been damaged. For this reason, the opinion of the Court of Civil Appeals in disposing of these assignments is approved.
For the reasons stated herein the judgment of the Court of Civil Appeals is affirmed.
Opinion adopted by the Supreme Court April 29, 1936.
Rehearing overruled June 24, 1936.