106 S.W.2d 1113 | Tex. App. | 1937
This is a workmen's compensation case with appellant, Republic Underwriters, the compensation insurance carrier; appellee, John D. Lewis, the employee; and O. W. Collins, the employer. Appellee filed this suit as plaintiff in the nature of an appeal from an adverse award of the Industrial Accident Board. He pleaded the nature and extent of his injuries, the facts entitling him to compensation, the necessary jurisdictional facts, and prayed for judgment for total, permanent disability or, in the alternative, "for such total, permanent, partial and temporary disability as the evidence may show." On the jury's answers to special issues, judgment was entered in favor of appellee against appellant for the sum of $2853.32, to be paid in a lump sum.
The case was submitted to the jury on 25 special issues. By issues Nos. 1 to 6a, inclusive, the jury found that, on the 20th day of June 1935, appellee sustained an accidental personal injury, in the course of his employment with O. W. Collins, and that his injury resulted in total incapacity which began on June 20, 1935. We give the following issues:
"Answer `Yes' or `No.'
"Direction: If you have answered Special Issue Number 7 `Yes,' you Will Not answer either or any of the following Special Issues numbered 8a, 9, 10, and ll, but if you have answered such Special Issue Number 7 `No,' and only in that event, then you will answer the next following Special Issue."
"Answer by stating the number of weeks, if any, in figures.
"If you have answered Special Issue Number Seven, `No,' and only in that event, then answer the next following Special Issue."
"Answer `Yes' or `No.'
"Direction: If you have answered Special Issue Number 7 `Yes,' you will not answer the next following Special Issue, but if you have answered Special Issue Number 7 `No' and only in that event, you will then answer the next following Special Issue."
"Answer by giving the number of weeks, if any, in figures.
"Direction: If you have answered Special Issue Number 9 `No,' you Will Not answer the next following Special Issue, but if you have answered Special Issue Number 9 `Yes,' and only in that event, then you Will answer the next following Special Issue."
"Answer by stating such percentage in figures."
Appellant excepted to the submission of issue No. 7 on the ground that the court's "direction" given in connection with that issue was an undue limitation on its right to an affirmative submission of the following issues; and it excepted to the submission of the following issues on the ground that they should have been submitted independently of the "direction" given as part of issue No. 7. The following authorities condemn as error the court's charge in the respects assigned by appellant: Texas Indemnity Ins. Co. v. Head (Tex. Civ. App.)
At the request of appellee's counsel, two doctors examined him before the trial "solely for the purpose of testifying and not for treatment"; heard his declarations "as to subjective symptoms," and examined a written report on "radiograph findings" made by another doctor. After receiving this information which, as we understand the record, was not in evidence before the jury and was not given the witnesses in the form of hypothetical questions, they gave their expert opinion as to appellee's "condition, incapacity, and the duration thereof." The testimony of these two doctors was all the testimony before the jury on these issues. This testimony was subject to appellant's exceptions that it was based upon "hearsay" and "self-serving statements" by appellee to the witnesses. In 65 A.L.R. 1219 it is said: "The opinion of a physician or surgeon as to the condition of an injured or diseased person, based wholly or in part on the history of the case, as told to him by the latter on a personal examination, is inadmissible where the examination was made for the purpose of qualifying the physician or surgeon to testify as a medical expert."
The following Texas authorities sustain the rule announced by A.L.R. Texas Employers' Ins. Ass'n v. Wallace (Tex. Civ. App.)
Appellee has filed no briefs. For the errors discussed, the judgment of the lower court is reversed, and the cause remanded for a new trial.
Reversed and remanded.