Texas Indem. Ins. Co. v. Preslar

I concur in the disposition made of this case, but cannot agree with my associates on one important holding. This question may not arise in this case again, as the evidence may be different upon another trial, but, since it may arise many times in other cases, I desire to express my views concerning it.

I cannot agree that the evidence in this case was sufficient to warrant the finding by the jury that the death of the deceased was caused by overheat. Appellees called two physicians to the stand as their witnesses to establish the cause of the death of the deceased. To each of these witnesses they propounded a hypothetical question detailing at length, in the light most favorable to their theory of its cause, all the facts and circumstances surrounding this death. In placing these witnesses upon the stand they vouched not only for their credibility, but for their qualifications to speak on this purely scientific question. One of the witnesses, Dr. Shackelford, would not name any cause at all; but, on the contrary, stated that he could not tell what killed the man, and that he did not think anybody else could. This testimony was given on direct examination brought out by the appellees themselves. The other physician, Dr. Payne, testified in answer to the hypothetical question propounded by appellees as follows:

"I could not say definitely. It could be either one of several causes. I think most likely it was cerebral apoplexy, or heat stroke, or some form of heart disease."

On cross-examination, when pressed for a more definite conclusion, he testified:

"As to whether there is any choice between these as to what might be the most likely cause to have caused his death under the circumstances, I think it would be just about equal chances between cerebral apoplexy and heat stroke, and least likely to have been from heart lesion."

While it is the universal rule that jurors may disregard the opinions of experts, and courts generally hold that their testimony is not of the highest order of evidence, yet, in my opinion, the question in this case is not altogether one of the right of the jury to disregard the testimony of these physicians, but is rather a question of whether appellees discharged the burden resting upon them to prove that the death of the deceased was brought about by a cause for which appellant was liable. If these physicians, who were witnesses for appellees and for whom they vouched, rested the cause of the death of the deceased in pure conjecture, then, I am unable to arrive at any other conclusion than that the verdict of the jury as to the cause of this death likewise rested in pure conjecture. The verdict of a jury must be based upon testimony in the record.

As this record comes before us, it seems to me that appellees introduced their evidence, and then proved by reliable experts of their own choosing that their evidence was insufficient. In this state of the record, as I view it, appellees' case is different from and much weaker than it would have been, had no physician been placed upon the stand.

The opinion of the majority recognizes that the logic of the situation is with the appellant, and that its contention has some support in the case of Fort Worth Rio Grande Rg. Co. v. McMurray (Tex.Civ.App.)173 S.W. 929, but bases the decision upon the ground that the exact question involved here was decided adversely to appellant in the case of Texas Employers' Ins. Ass'n v. Moore (Tex.Civ.App.) 279 S.W. 516. To my mind that case is clearly distinguishable from the case under consideration. In that case two doctors testified as experts, one of them being a pathologist, and the other an internist. The internist testified in answer to a hypothetical question:

"I would consider that he died from heat stroke under those conditions."

While the pathologist in reply to the hypothetical question testified that there were two conditions described in the question propounded which were found in heat prostration, yet there would not be enough for him to base a diagnosis upon, as he could only diagnose any case from pathological findings. As I view it, that testimony was materially different to the testimony in this case, and in no sense does it seem to me that the decision in that case is authority for the holding of the majority in this case.

The other case cited is the case of Georgia Casualty Co. v. Little (Tex.Civ.App.) 281 S.W. 1092. I do not regard it as an authority upon this question. In that case the doctor who testified as to the cause of the death of the deceased was the physician of the insurance company. His testimony was not altogether positive and emphatic, but he did testify that he thought the injuries sustained caused the death of the deceased indirectly. Had he testified that he could not tell and did not believe that any one else could tell what caused the death in that case, I believe a different decision would have been rendered in that case.

No useful purpose would be served by an exhaustive opinion on this question and citation of authorities, but, for the reasons indicated, I feel constrained to dissent respectfully from the views of my associates on the question discussed herein