GRAVES, Justice (dissenting). The appellants' contention that the trial court erred in submitting that subdivision of special issue No. 5, that is, item (1) thereof, permitting the recovery for any pain that may have been suffered by the appellee between the date the needle was left in his backbone on the 22d day of June of 1931, and the date of this trial below, on the ground that the undisputed evidence showed he did not suffer any pain in his back until four days less than three weeks after the needle was so broken off in his back, is obviously unsound; it is true that in one place in his cross-examination on his second recall to the stand the appellee, after he had answered that he first made complaint to Dr. Thorning about this pain in his back three weeks after the doctor had operated on him for appendicitis, further said that his back had been troubling him "about three or four days before that at home"; but, against the meaning the context and setting otherwise give to this statement, appellants construe it as meaning that this was the first time he had ever had such pain, whereas he and several other witnesses in his behalf elsewhere make very clear that he had been having such pain and suffering in his back, and, as a result of the presence of the needle, almost from the time it had been left in his body, certainly not longer than the week after he had gone home from the appendicitis operation; it seems plain therefore that all he meant by the expression appellants rely upon in this connection is that he had been troubled with his back for three or four days at his home before he made the complaint concerning it to Dr. Thorning he was then testifying about; at any rate, there is plenty of testimony to raise the issue of such suffering on his part from this cause between the two dates mentioned — beginning much earlier than four days before the expiration of three weeks after the needle was broken off in him — and the entire statement of facts will be searched in vain for any at all to the contrary, since neither he himself in the quoted response, nor otherwise, nor any other witness, ever testified that that was the first time he had suffered from pain in his back — his own statement simply being that he first made complaint to Dr. Thorning about this pain "three weeks after the day I was operated on" — both he and all the others bearing witness to prior as well as subsequent suffering in these among other replies:
The appellee himself on original direct examination testified that after he had been home from the appendicitis operation about a week, he suffered pain in his back.
"It was just a sharp pain. Every time I bent over my back hurt. I couldn't sleep, it was throbbing and would feel like, — well, part of my back was sore as a boil, and I couldn't rest or anything.
"Q. How was your side at that time? A. It was all right.
"Q. You are not making any complaint about the appendicitis operation? A. No, sir."
Mrs. Busch, the appellee's wife, when asked whether she had noticed any difference in her husband's condition before and after the operation, answered:
"Yes, sir.
"Q. What's the difference? A. Well, he has been nervous, and isn't near so strong as he was before. He has been sick quite a bit.
"Q. Has he been sick? A. Well, he suffers so much agony and pain.
"Q. Well, where was the pain? A. In his back.
"Q. State whether or not he appeared nervous? A. Yes, sir, he was awful nervous, — couldn't rest at night."
Witness R. W. Kyle on the same subject testified:
"Q. Have you seen him since June 20th, 1931? A. Yes, sir.
"Q. How often have you seen him? A. Well, I saw him on several occasions after he was operated on.
"Q. Well, did you notice any difference in his physical appearance? A. Yes, sir.
"Q. What was the appearance? A. Well, I was at his father's market there in Humble the first time I saw him up after he was operated on for appendicitis and asked him how he was getting along and he said all right, but complained of his back bothering and hurting him.
"Q. Do you remember about when that was? A. Well, it must have been around the last of June, as well as I remember it.
"Q. Well, did you see him after that? A. Yes, sir.
"Q. Well, when you saw him after that did he appear to be suffering pain? A. Well, he *Page 1107 showed, more or less, from his looks that he was suffering, — he was drawn and pale.
"Q. Well, how often have you seen him since then? A. Well, off and on ever since then I might say.
"Q. Well, how long would you say that he was suffering pain; from your observation of him that he appeared to be suffering pain? A. Well, it was a month or more, I guess."
Likewise, on the same inquiries, the witness Albert Poskey, after stating that he knew about when Busch had been operated on for appendicitis, said:
"Q. When was that? A. I think about the middle part of June, around the 20th, — the middle part of June, somewhere around there.
"Q. Well, have you seen him much since then? A. After he was operated on?
"Q. Yes. A. Yes, sir, saw him right smart.
"Q. Have you noticed any difference in his physical appearance? A. Yes, sir.
"Q. What difference have you noticed? A. Well, he wasn't — he seemed like he wasn't as able, I mean, as strong coming down from the operation.
"Q. State whether or not he appeared to be suffering pain? A. Yes, sir, he did — the expression of his face told he was suffering.
"Q. Well, how long would you say he suffered pain after the operation? A. Well, he suffered with those pains to the time he was operated on for the needle to be took out of his back."
In the face of the cited testimony, to say nothing of more of the same effect in the record, inclusive of Dr. Biscoe's uncontradicted statements that, when the appellee first came to him, he had lost much weight since the appendicitis operation, both complained of and gave evidence of having suffered pain, that he then removed the needle from a position it had worked around to toward the stomach, and that the appellee was still under his professional care for this injury on the date of the trial, it seems inept to yet insist that a reversal should be ordered because of the court's having submitted the carefully-qualified special issue No. 5, over this sole objection of appellants thereto:
"The undisputed evidence being that the plaintiff did not suffer any mental anguish or pain until about four days prior to his first visit to Dr. Thorning's office, three weeks after the 22nd day of June, 1931."
Especially so, when the issue was framed in such way as to accurately follow the only cause of action either declared upon or supported by any proof at all, that is, injuries (inclusive of pain and suffering) resulting solely from the leaving of the needle in the appellee's body, and specifically forbade the allowance of any recovery on that, unless it was shown by a preponderance of the evidence to have been endured between the time the needle was admittedly so broken off and this trial.
Neither is it thought a reversal should be ordered because the $110 item allowed as reasonable and necessary medical and surgical expense cannot be sustained in toto; since the uncontradicted testimony shows that $50 was all the appellee would have been compelled to expend for hospital fees, had he accepted Dr. Thorning's offer to remove the needle there without charge for medical service, that sum only of the $110 awarded should be allowed, and, with the recovery so reduced on that feature, the judgment should have been affirmed. This dissent from the court's refusal to so order is respectfully entered.