DocketNumber: No. 13598.
Citation Numbers: 188 S.W.2d 899
Judges: YOUNG, Justice.
Filed Date: 4/20/1945
Status: Precedential
Modified Date: 1/12/2023
This is a workman's compensation suit, third trial, second appeal. The first verdict and judgment, awarding compensation as for total and permanent disability, was reversed for procedural errors, Texas Employers Ins. Ass'n v. Hale, Tex.Civ.App.
Appellant denied that Hale sustained either accident or injuries; the gist of its fact defense in this 958 page record being that his disability was solely due to a bodily condition existing long prior to the alleged accident and in nowise associated therewith, namely, lumbago, tubercular, kidney and prostate troubles resulting in chronic arthritis.
Following appellant's contention that its timely motion for instructed verdict should have been granted, a summary of its points of appeal are: (a) The court's error in failing to grant new trial because of an insufficiency of evidence to support the jury verdict that plaintiff suffered an accident on February 9, 1940, or that his claim of disability beginning June 20 was the result of any accident occurring on the earlier date; (b) error in instructing the jury that their answers to the special issues should be "arrived at from a preponderance of the testimony"; (c) erroneous exclusion of defendant's Exhibits 33 and 34 consisting of X-ray pictures offered in connection with the medical testimony of Dr. Holtz for the limited purpose of illustrating a normal back and range of the intervertebral spacing therein; (d) in connection with issues 1, 2, 3 and 4, the court erred, in failing to eliminate from consideration by the jury evidence of certain injuries which were neither pled nor relied upon by plaintiff as causing disability, viz: kidney and prostate gland trouble, herniation or rupture of the seventh and ninth thoracic, and first, second, third and fourth lumbar vertebrae; (e) error in permitting Dr. Hurt, plaintiff's witness, to relate, as part of the history given by claimant, the occasion and instrumentality causing alleged disability; (f) plaintiff's counsel, in cross-examining defense witness, Dr. Franklin, should have confined his hypothetical questions to the specific injuries pled and relied upon; (g) error in forbidding witness Dr. Hurt, upon request by appellant's counsel on cross-examination, to illustrate to the jury the position he assumed the plaintiff to have been in when injured; (h) the court should not have sustained objections to defense argument in instances (two) hereinafter shown.
Mr. Fryer, furniture owner, testified to watching the two men move the chifforobe down a steep stairway; that his attention was drawn to a noise of grunting and stumbling of feet, thinking to himself that they were in trouble, of seeing another man run over to help them. Plaintiff's only medical witness was Dr. George Hurt, whose observation and treatment of such patient began the latter part of June 1940. He diagnosed the injury sustained by Hale the preceding February as a rupture of the nucleus pulposus (the seed-like center of cartilaginous disc between the fifth lumbar vertebra and the sacrum), extrusion of said nucleus into neural opening or spinal canal, and consequent narrowing of intervertebra and the sacrum), extrusion of said nucleus into the neural opening or spinal his lower back downwards. Answering a hypothetical question by counsel, this witness pronounced the disability in question as total and permanent, for which condition the February accident was responsible; maintaining such opinion through exhaustive cross-examination.
On the other hand, defense medical testimony flatly challenged above diagnosis, and was to the effect that the injuries pictured by Dr. Hurt would have resulted in immediate immobilization and partial paralysis of the patient; in short, "a litter case"; generally describing plaintiff's disorders as a likely result of the pre-existing toxic condition of prostate, lungs and kidneys. It was the unanimous opinion of these well-qualified witnesses upon lengthy examination that there was no evidence of constricted intervertebral spacing between sacrum and fifth lumbar, or of a ruptured disc, such as would produce nerve pressure; and that plaintiff's history of continued manual labor after the alleged *Page 902 accident conclusively refuted same. However, in passing upon appellant's propositions arguing no evidence or insufficiency thereof to raise issues of total and permanent disability, we are required to discard all adverse or contradictory testimony and give credence to record facts most favorable to the successful party. From such viewpoint, whether or not plaintiff sustained accidental injury on February 9, 1940, was presented by his narrative alone, the extent and duration thereof being the jury question.
Pertinent to these findings of maximum disability, Hale testified that from the date just named he had not been free of back pains; similarly as to legs, with areas of numbness; that his grasp was infirm; that he had difficulty in bending over; had to be careful in walking to avoid jolting body; wearing a back brace since June 1940. For some four years plaintiff had been under observation and treatment of Dr. Hurt, whose testimony directly contradicted that of many eminent physicians. Even so, his opinion was of probative value on the primary issues under discussion. An appellate problem quite analogous was presented in Texas Employers' Ins. Ass'n v. Clark, Tex.Civ.App.
In the same connection appellant urges error in the court's refusal to grant peremptory instruction because of following additional fact situation: On April 25, 1940, plaintiff had gone to the office of Dr. Franklin for a thumb injury sustained in course of employment. This doctor testified that Hale gave no history of any other trouble and had no appearance of one suffering from a back injury. Later, upon oral deposition in the present case, referring to the Dr. Franklin visit, he testified: "Q. You were in perfect health except for your thumb? A. Yes, sir. Q. And you had your alleged injury on February 9, 1940? A. Yes, sir." Hale admitted above statement on subsequent trial; explaining same as having been mistakenly made without full understanding concerning the matters under inquiry. The rule sought to be here invoked is that "Admissions made by a party while testifying as a witness are conclusive at the trial during which the testimony is given." 17 Tex.Jur., par. 240, p. 576.
This principle is deemed inapplicable, considering plaintiff's testimony as a whole. The so-called admission was subject to explanation thereof made by him at the trial, Stanolind Oil Gas Co. v. State,
An introductory sentence of the court's charge reads: "Your answers should reflect only your conclusions of fact honestly arrived at from a preponderance of the evidence before you." Each of the issues thereafter submitted carried its own burden of proof. Appellant submits that the above general instruction is erroneous because the jury is there told that a negative answer to issues must be made from a preponderance of the evidence. Opposed to appellant's contention are numerous decisions to the effect that where, as here, each issue has been so framed as to clearly indicate its own burden of proof, the jury could not be misled or confused by the quoted preliminary instruction; and the error thus complained of is considered harmless. Miller v. Wyrick, Tex. Civ. App.
The trial court is further charged with error in holding inadmissible two X-ray pictures offered in connection with testimony of defense witness, Dr. Holtz. Previously Dr. Hurt, with X-ray pictures of plaintiff's back in evidence, had testified to a displacement downward of the fifth lumbar vertebra and a restriction of the neural (nerve) opening between the named vertebra and sacrum, due to a ruptured disc. Dr. Holtz had already stated that his examination of plaintiff indicated herniations of the nuclei in the upper or thoracic region, but as regards the fifth lumbar and sacrum, there was no narrowing, or wedging, pronouncing claimant's back normal in all respects; testifying (and the fact appears undisputed in the record) that intervertebral spacing in a normal back varied from one individual to another. In course of direct examination, Dr. Holtz was asked about other X-ray films that would serve to illustrate the varying degree of spacing between the fifth lumbar and sacrum in different individuals; whereupon the evidence in question was offered consisting of X-ray back pictures of Messrs. Logan Ford and Mack Taylor, defense counsel. Upon objection, the court excluded Exhibits 33 (Ford) and 34 (Taylor), and defendant's bill of exception discloses the full testimony of Dr. Holtz relative thereto. The picture of Mr. Taylor, he said, showed larger neural openings and intervertebral spaces than did similar films of either plaintiff or Mr. Ford; while the latter's back (Exhibit 33) indicated a smaller margin of spacing, openings and wedging than was shown in Exhibit 11 (of Hale); and that the rejected Exhibits represented the variation of spacing in normal human vertebrae unassociated with accident or pain. Said pictures were then tendered in evidence "for the sole and limited purpose of illustrating the range in the spacing, the opening, and in the wedging in the * * * fifth lumbar vertebra region * * * of a normal back." Plaintiff's objections thereto, sustained by the court, pointed to no agreement that such films depicted a normal back; and to the age disparity of defense counsel as compared to plaintiff, the evidence being merely cumulative at most.
Similar X-ray portrayals of the human structure (third persons), introduced for purpose of comparison or illustration, have been uniformly held relevant. Chicago, R. I. G. Ry. Co. v. Smith. Tex. Civ. App.
Appellant adduced testimony in support of its defense that plaintiff's injuries were due to physical infirmities wholly unassociated with the 1940 accident; and next assigns error in that the court failed to instruct the jury, in connection with issues 1 to 4, that the results of other infirmities in evidence, viz., prostate and kidney trouble, etc., should not be included in their estimate of plaintiff's disability. Defendant requested no instruction to such effect, however, simply detailing the evidence relating to plaintiff's other disabilities in its objections to the issues that "same does not limit the inquiry to a consideration of the injuries pled." Rule 279 in part provides: "Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment." Said objections related to defensive matters that might well have been included in the charge, if called to the court's attention by requested instruction; but a tender of the defense by way of explanatory instruction is now held a necessary predicate to appellate complaint. Great American Indemnity Co. v. Sams,
The court overruled defense objections to the following question propounded by plaintiff during examination of Dr. Hurt: "Now Doctor, did you get the history of his case when you examined him? A. Yes, sir." However, the interrogatory was not pressed, the next question involving another matter to which no specific objection was made; under which state of the record we find no basis for appellant's eighth point of error. Likewise the further point is made that upon defendant's request, Dr. Hurt should have been required to demonstrate the accident to the plaintiff as he understood it. We see no merit in the proposition, the witness having first stated that he was unable to do so, giving reasons, the court at the same time according counsel the right to elicit from witness in words the information desired by way of ocular demonstration.
The court sustained an objection (Bill No. 3) to the following jury argument by defense attorney, Mr. Ford: "Isn't it strange that the only doctor in Dallas that would come down here and testify to such condition (referring to plaintiff), is Dr. George Hurt?" Dr. Shaulk had been in attendance at the trial as a witness for plaintiff, but before being used was reported abed with a respiratory infection; under which state of the record, no error prejudicial to defendant is disclosed. Similarly under bill of exception 4, a statement of Mr. Ford in argument was stricken as not sustained by the record. We think the ruling tended to unduly limit the latitude of argument, as counsel was correctly restating the full effect of particular testimony, though not in exact language of Dr. Hurt; and it may be that the restriction was needlessly imposed. However, the ruling bore only remotely upon the jury issues and is not viewed as "such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment"; Rule 434. We conclude, after careful study, that appellant's points herein discussed and presented, should be overruled, with resulting affirmance of the judgment under review.
Affirmed.
In Grocers Supply Co. v. Stuckey, Tex.Civ.App.
Great American Indm. Co. v. Sams. , 142 Tex. 121 ( 1943 )
Russell Const. Co. v. Ponder , 143 Tex. 412 ( 1945 )
La Grange Lockhart Compress Co. v. Hart , 169 S.W. 373 ( 1914 )
Miller v. Wyrick , 96 S.W.2d 253 ( 1936 )
McGraw v. Galveston, H. S. A. Ry. Co. , 182 S.W. 417 ( 1916 )
Stanolind Oil Gas Co. v. State , 136 Tex. 5 ( 1939 )
MacFadden Publications v. Wilson , 121 S.W.2d 430 ( 1938 )
Russell Const. Co. v. Ponder , 182 S.W.2d 857 ( 1944 )
Texas Employers' Ins. v. Clark , 23 S.W.2d 405 ( 1929 )
Chicago, R. I. G. Ry. Co. v. Smith , 197 S.W. 614 ( 1917 )
Norland v. Peterson , 169 Wash. 380 ( 1932 )