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519 S.W.2d 891

Phillips v. Williams

Court of Appeals of Texas

Decided January 10, 1975

Court of Appeals of Texas · decided 1975-01-10

Cited by 1 later decisions — most recently October 1975

Relies on In Re King's Estate · Moulton v. Alamo Ambulance Service, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 1975-01-10

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WALTER, Justice.

¶1Raymond Phillips and wife, Betty, recovered a judgment against Jerry Williams for damages resulting from an intersec-tional collision.

¶2The Phillips have appealed. They contend the answer to the damage issue is against the great weight and preponderance of the evidence. They also contend there was no evidence to warrant the exclusionary instruction in the damage issue. Said instruction is as follows:

“Do not include any amount for any condition resulting from failure, if any, of Betty Phillips to care for and treat her injuries, if any, which resulted from the occurrence in question as a person of ordinary prudence would have done under the same or similar circumstances.”

¶3Dr. Lloyd R. VanDeventer testified by deposition substantially as follows:

I specialize in orthopedic surgery and practice in Wichita Falls, Texas. I saw Betty Phillips on December 11, 1973, and her main complaint was pain in the left knee. My diagnosis was torn medial semilunar cartillage in the left knee. I recommended to her that she have this knee operated on and the cartillage removed. I did not think she could be cured by conservatory treatment. If she doesn’t have this operation, the chances of the matter repairing itself are virtually none. She will always have this disability unless she has the operation.

¶4Betty Phillips testified that the doctor recommended surgery on her knee but she preferred not to have it as long as she could get by without it. She said, “I’d just rather try to tough it out.”

¶5Was there some evidence of probative force of negligence on the part of Mrs. Phillips in failing to care for and treat her injuries? We find there was and hold *892the exclusionary instruction was proper. In Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967), the court said:

“An exclusionary instruction in the suggested language will cover situations in which there is evidence of negligence on the part of the plaintiff in failing to consult a doctor, in failing to consult a doctor as soon as a reasonable prudent person would, in failing to follow a doctor’s advice, or simply in failing properly to care for and treat injuries which do not require the attention of a doctor.” (Emphasis added)

¶6We have considered the entire record and find that the jury’s answer to the damage issue is not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

¶7We have considered all of appellant’s points and find no merit in them. They are overruled.

¶8The judgment is affirmed.

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