Liberty Mutual Fire Insurance Co. v. Gee , 1988 Tex. App. LEXIS 147 ( 1988 )

ON MOTION FOR REHEARING

GRANT, Justice,

dissenting.

I disagree with the majority’s conclusion that testimony of Dr. Joseph Emmite and Robert Millford was not cumulative.

Dr. Emmite testified that he was not qualified to testify as to whether there was a connection between Gee’s back injury and the injury involved in this case, which occurred in February of 1982. The issue of whether the leg injury had extended into and affected Gee’s back was the main issue in controversy. Dr. Emmite further testified that Gee had not complained to him of pain in his back until November 4, 1985, which was more than three and a half years after the on-the-job injury. Although Dr. Emmite’s treatment predates that of the other physicians testifying in this case, he testified that he did not treat Gee for a back injury. I find that Dr. Emmite’s testimony does not add any significant evidence to that offered by the other medical experts.

Likewise, the testimony of Millford, who is Gee’s uncle, is cumulative of the testimony of other relatives who testified that Gee was having back problems soon after the initial injury.

The erroneous admission of this evidence must still be considered under the standard set forth in Tex.R.App.P. 81. Gutierrez v. Dallas Independent School District, 729 S.W.2d 691 (Tex.1987). Thus, I find that the erroneous admission into evidence of Dr. Emmite’s deposition and Millford’s testimony was not reasonably calculated to cause and did not cause the rendition of an improper judgment.

The motion for rehearing should be granted and the judgment of the trial court should be affirmed.