International & Great Northern Railroad v. Goswick , 98 Tex. 477 ( 1905 )

GAINES, Chief Justice.

This suit was brought by the defendant in error against the plaintiff in error to recover damages for personal, injuries and resulted in a judgment in his favor. That judgment was affirmed by the Court of Civil Appeals. The plaintiff was a passenger on one of defendant’s trains and was injured as a result of a collision between that and another of the defendant’s trains.

When we granted the writ of error we were under the impression that the plaintiff, in testifying to his earning capacity before his injuries, had sworn that he had accumulated certain property both real and personal, and that it was of' a certain value; and that thereupon counsel for defendant asked him in substance at what value he had rendered this property for taxation. The court sustained an objection to the testimony and we thought this was error. But we find that we were mistaken as to the state of the record—a mistake induced by the opinion of the Court of Civil Appeals and by the application for the writ of error. It appears from the transcript that the testimony of the plaintiff as to his property and its value was not given upon his examination in chief, but was drawn out upon his cross-examination by the defendant. The testimony was merely as to the property he possessed at the time of the trial, and there was nothing to show when or how he acquired it. It seems to us, therefore, that this matter was wholly irrelevant to any issue in the case. It follows that an inquiry as to the value of the property as rendered for taxation was still more remote and equally irrelevant. We think the court did not err in excluding the testimony.

The second assignment of error in this court is as follows: “The trial court erred in excluding the testimony of Drs. Jameson, Dupuy and Martin, and the Court of Appeals erred in sustaining said action of the trial court, because the substance of the question to said doctors was what - was their opinion on the permanency of plaintiff’s injuries when considered amongst other things in connection with the declarations of the plaintiff, and the object was to know what reliance the doctors would put in his declarations in connection with their physical examination of him, when considered in the light of the fact that he had a case pending in court for damages for these very injuries. The trial court excluded said testimony because in the hypothetical question the fact was stated that plaintiff had a case pending in court, the court saying that if that was left out he would permit the doctors to answer.. Appellant excepted to said ruling of the court, because it contended that the motives which prompt a man who is afflicted to make declarations of his feelings ought to be known to the doctor whose opinion is desired.” It is apparent from the face of the assignment, as we think, that the court did not err in refusing to permit the witness to answer the question. The fact that the physicians were asked to give an opinion, and in arriving at a conclusion to consider that the plaintiff was suing for the injuries under consideration, condemns the question. It was not for the witnesses, however expert, to weigh the circumstances and to pass upon the credibility of the plaintiff. This duty was within the province of the tjury. The proper method of examining an expert witness upon a hypothetical case is to ask his opinion as to the conclusion to be adduced from certain facts which there is some testimony to establish, upon the theory that the facts stated are true. If the facts should be found by the jury to be true, then the ojiinion of the expert is to be weighed by the jury in connection with the other testimony in the case bearing upon the point. If the supposed facts are found not to be true, then the opinion of the witness is valueless and goes for naught. The truth or falsity of the facts hypothetically stated in the interrogatory is never a matter to be considered by the expert whose opinion upon the case so stated is sought to be elicited.

The last assignment in the application for the writ of error is that the verdict is excessive. This is purely a question of fact, upon which the determination of the Court of Civil Appeals is conclusive.

Finding no error in the proceedings as pointed out by the assignments, the judgment of the District Court and that of the Court of Civil. Appeals are affirmed.

Affirmed.