Jim C. McKelvy, Petitioner v. Dr. Forrest C. Barber, Respondent

Summary

The Texas Supreme Court reversed the trial court and Court of Civil Appeals and remanded for a new trial, holding that the instructed verdict was unsupported both because the evidence could support a finding of negligence causing tetanus and because the physician was not an employee or agent entitled to statutory immunity. The Court also held that the petitioner had not waived the right to challenge the statutory immunity ground and that the Supreme Court may consider unraised points of error. Justice Smith dissented, arguing that the petitioner waived the challenge and that the Court should not examine briefs of the losing party to reverse the lower courts.