Texas Employers Ins. Ass'n v. Hatton

Bagby Austin, Bagby, peti- & for Winters and Arthur P. tioners. Wilcox, Ralph Yarbrough, Georgetown, E.

Wood & W. Wayne Austin, Johnson, re- Thode Townsend & all spondents.

Per Curiam appearing Court, by parties

It stipulation copies certified appropriate Probate orders Court County herein, fully Travis filed that this case has been settled compromised by thereto, parties therefore this cause is moot, opinion on, adjudication of, dismissed as without controversy by merits- of the this Court.

Opinion delivered March 1953. Employers Insurance Association

v. Arthur C. Hatton. 11,1953.

No. A-3837. Decided February Rehearing overruled March 1953. (255 848) S. 2d Series W.

3Q0 B.urford, Ryburn, Ford, Logan and Clarence Ford Hincks & ... ..... n Dallas, Guittard, petitioner. .all for allega-: holding Appeals that the

The Court of Civil erred attorney’s concerning plaintiff’s read properly fee could tion objection, where there was over defendant’s holding lump recovery; trial presented on. sum issue medical permit defendant’s refuse discretion court..had plaintiff’s- freedom of movement witness to demonstrate' plaintiff, manipulating after same front of exhibiting voluntarily immunity by his foot and had waived his tp attempting therein. White loss. motion .the .demonstrate 101, 200; Moore, Texas Pac. 146 2d & Cabs v. Texas 203 S.W.

201 307; 563, Ry. Gillette, 83 2d Wallace 125 Texas S.W. Co. v. . Co., 612 Texas 226 S.W. Acc. Indm. Hartford & 2d. 148 Yarbrough Holland, Donald & Sam of Athens and White Dallas, respondent. Yarbrough, V. all of Emp. petitioner’s point reply cite Texas Ins. Ass’n. v. Long, merit; 2d Error for want of Ameri S.W. refused Ariola, Refused, can Ins. 2d Gen. 187 S.W. want Ass’n., merit; Employers Eubanks v. Texas Ins. 2d 467. delivered the the Court.

Mr. Justice Culver compensation sharp- issue, In this case the workmen’s rather ly drawn, concededly was whether the suffered serious by respondent leg was confined to foot and contended his as by respondent adversely parts body, prin- affected other his of cipally hip, by his back and reason of which he total claimed- permanent disability. jury’s on

Based the respondent, judg- verdict favorable to against ,petitioner, ment rendered Employers’ Insur- Texas Association, ance 208 incapacity for weeks of total rate at. per of permanent week and for partial, 193 weeks of $25.00 75% incapacity at the per judgment rate of week. This $22.50 Appeals, affirmed of Court Civil of writ error Has granted. been 252 2d 754. beginning At petitioner, conceding the trial that the pleading “lump- and.evidence would sustain the award aof recovery, sum” moved the Court to instruct counsel not read jury portion setting petition that of his out fact such allegations, being one of that contract had been made with recovery for a third paid of the to be at- torney’s fees. This motion was sustained. Petitioner then moved respondent’s the Court to instruct attorney which, not to jury part read to the petition followed and which reiterated attorney’s the contract for fees. This allegation motion was overruled and the was read jury. are We part this action on. trial court was error. .... theory pertinent

Under no was it to advise jury attorney, plaintiff, reason contract made his with eventually receive two-thirds of whatever award would attorney’s might amount to be allowed in be made. fees compensation exclusively for the not the case court and subject approval jury, and contract was made a lesser court. The court discretion could award 7d, Statutes; Art. Revised Civil Texas Em- amount. Sec. Lane, 893; Ass’n. v. 124 S. 2d. Texas ployers’ Insurance W. Bush, Indemnity v. 224. Insurance Co. S. W. 2d. insisting proper, Respondent, action of the court was Corporation Employers’ Liability case Assurance v. cites (Error refused); Sims, 67 2d. 445 Houston Fire & Cas- S. W. Ford, ualty 2d. Insurance Co. S. W. N.R.E. both lump-sum award the issue was before the those cases decision, attorney’s properly and the element of fees was Consequently considered on that issue. these point here. are not in cases Appeals reading justifies alle Court Civil of this invoking

gation by Rule Rules of Civil Procedure. purpose of the no more believe the rule is than to set forth We steps the order which the of a trial are different generally. application point It has no Willoughby, at all taken raised Johnson v. 183 S. 2d. Error refused. here. W. by attorney’s this held court that a discussion of It has been jury justify material misconduct will reversal. fees Moore, 200; 203 v. 146 Texas S. 2d. Cabs W. Texas White Gillette, 307; Ry. 125 83 Texas S. 2d. St. P. Co. v. W. & Ry. Lewis, 534; Co. 10 2d. Texas Southwestern v. S. Louis W. Mix, Ry. 193 S. 2d. 542. Co. v. W. & P. argues involving Respondent cases these cited for suits damages applicable at law would not be to suit common brought compensation under workmen’s law. able We are principle perceive difference to no involved. The same brought given calculated influence to bear such information jury just compensation to be effective seems to us damage it would in a suit. In this case as case there was no attorney’s fees, reference to no inadvertent instruction same, disregard but on the other hand contract attorney’s express approval per- fees was read with for court. mission

263 application rule contended for jurisdic- reading jury purely compel of those would concerning allegations prior of the claim tional submisison clearly award, Accident Board its Industrial permitted jury. Fidelity revealed to the Union Cas- are not to be App.) ; ualty Cary, (Com. Em- 25 S.W. 2d. Downing, ployers’ 112. re- Insurance Ass’n. v. S.W. Writ fused; Corporation Young, Employers’ Liability Assurance v. 2d. 822. reasonably

In our this error create calculated to greater sympathy respondent, to influence the make larger made, award than it would otherwise have and thus judgment improper cause the rendition 503, anof in this case. Rule Procedure; Light Texas Rules Civil Texas Power & Co. Hering, v. 148 Texas 224 S.W. 2d. 191. agree point the second

On we with that the trial refusing permit manipu court erred its medical witness to respondent’s late foot in an effort to show that there was no Respondent, of motion loss as claimed. while on the stand in suggestion counsel, and at the re moved his shoes and socks and demonstrated to the depress could not position. below a horizontal Petitioner sought witness, by taking then to have its medical hold of the foot, to show that the member could raised and lowered from position. objection the horizontal by respondent’s made counsel sustained the court is as follows: object try “We to have a medical examination made here provides way because the law a method and a and we want our rights under the law. objection testifying have it, “We to the doctor’s about but goes object.”

if he to touch him we Petitioner contends that part when the has been bared and exhibited in effect it was introduced in accordingly evidence and an examination and demonstration permitted should have been then and there. The rule is well Kenney LaGrone, 600, citing stated Chicago S. 2d. W. Ry. Langston, R. & I. T. App. 568, 19 Texas Civ. 47 S. 1027, affirmed, W. many S. W. other authorities. these cases deal with the While of an exami jury, nation of the nonetheless we think the holdings clearly encompass the demonstration 20.4 Respondent

sought performed here. contends to be was this attempt petitioner’s part physical an on to have a ex- effect accomplish and to he amination made should have availed provisions Section Revised himself Article This contention Court of was sustained Civil Statutes. Appeals. Civil provision here we do not think this

Under circumstances any application. already An examination had has by been made attempting and he here to this doctor demonstrate what revealed, previous namely, he examination that there claimed his manipulated loss motion and that could was little the foot up joint. down from the ankle argues

Respondent that even had the doctor able been foot, permitted to had and lower the been demon- raise weight this fact to the it would had no strate have or bear- ing respon- for the reason that it would not tend to show himself such control over movement dent muscular appraisal respondent’s testi- foot. We think fair of the mony joint rigidity would indicate a or in the ankle stiffness by a failure. caused fusion of the rather than a muscular bones At least doctor asserted could demonstration such as the such have been would tend to there no made show objection rigidity. stiffness or was no assertion or There might pressure apply would cause dis- doctor pain why privilege comfort reason shown this demonstration should have been refused. permitting

By the contract for attor- reason of the error judgments trial ney’s read to the fees Appeals cause are reversed of Civil and Court court for another trial. district court remanded February 11, 1953. Opinion delivered Smedley, Calvert, joined by concur- Justice Mr. Justice ring. majority written Justice error, thereby points petitioner’s two first sustains Culver rulings complained of was

holding therein that each erroneous. agree remanded that the cause should be but because

I point. complained of in the first of the error point ruling complained in the second regard of not the I do bring it out order point error is set of erroneous. as analysis: closer under holding the trial Appeals that erred

“The Court of Civil medical permit defendant’s refuse to had discretion to plaintiff’s movement the freedom of to demonstrate witness jury manipulating front of the toes, by same in ankle foot and voluntarily immunity by exhibit- waived his after attempting the loss ing to demonstrate his foot to the of motion therein.” complain that it does It will be noted that respondent’s right of a reasonable examination

was denied the foot, seen; claim error its it as will later be as indeed cannot flexibility entirely upon “demonstrate” its demand to rests by “manipulating” them toes, respondent’s and ankle foot right theory de- jury.” upon is “in front of the respondent’s extent of manded to demonstrate to exhibiting By by injured manipulating this: is his inviolability his waived the foot to the being evidence, peti- person, and offered in his the foot thus right, cross-examination, by way make tioner had the “to may to the further it as have been relevant exhibition case,” including “manipulate” issues in the it before holding jury. by petitioner, case none No so has been cited majority opinion, has cited in the and none been has been by Moreover, found the writer after extended research. such a holding underlying directly contrary spirit is the cases by petitioner by majority. relied on governed contends asserted is Petitioner by controlled of common law and I will first examine rules light problem in of such rules. jurisprudence

It is well of this state established contrary, statutory requirement in injured an the absence of litigant compelled cannot submit himself or his adversary parts to an examination or even an impartial contrary prevails A rule in some states examiner. urged state, upon this it was re- was once courts of but Judge opinion by jected Brown in this court in a forcful Cluck, Texas 77 S.W. case Austin & N.W.R. Rep. 104 Am. 1 Ann. 64 L.R.A. St. Cases 261. recognized authority a division of on the case this court leading representing analyzed points question, cases two say for the courts of view, sufficient to “It is and said: and force authority order such an examination law nor neither in the common found party to submit state, not exist and therefore does laws in the statute of Texas.” the courts cannot exercised repudiated and in has never been rule of the Cluck case The has preserve spirit of decision it keeping and to that with the immunity party injured does not lose his held that been involuntary merely points out to because he examination from injured body in which part been or of his has Rowell, Ry. pain. v. Stores, Tex. Civ. Texas Electric Co. he suffers App., 788, dism.; Safeway Inc. Texas 211 writ S.W. 1055, Rutherford, App., affirmed 130 Tex. 101 2d v. Civ. S.W. 465, Moreover, requiring exami- 111 2d 688. Rule Texas S.W. adopted by subsequently re- at one time this court nation pealed. an petitioner have

But contends that the courts established case, exception required exception to the of the Cluck which rule pres- permit petitioner demonstrate in the court to to the trial respondent’s by manipu- the condition of ence of lating following support position petitioner it. of its cites cases, by majority which are relied on sustain- some of Chicago, Lang- ing petitioner’s Ry. contention: R.I. & T. v.Co. 568, 1027, ston, App., 19 Texas 47 S.W. on motion for Civ. rehearing, App. 585, 610, ques- 48 19 Texas Civ. certified S.W. answered, 709, 574, 331; 92 50 Hous- tions Texas S.W. 51 S.W. Anglin, 349, 966, v. ton & T.C.R. Co. 99 Texas 89 S.W. 2 L.R.A. 386; Ry. Chojnacky, (N.S.) H. Galveston & S. A. Co. v. Tex. App., 1011, history; Lively, 163 no writ Civ. S.W. Bower v. Tex. 556, history; App., 11 2d no writ Civ. S.W. Panhandle & S.F. Sedberry, App., Ry. Tex. Civ. 46 2d S.W. no writ history; Haynes Trenton, v. Town of 123 Mo. 27 S.W. addition, majority opinion 622. In Kenney cites the case of LaGrone, App., Tex. affirmed, v. Civ. 2d Texas 93 S.W. 2d 397. foregoing undoubtedly exception

The cases an announce immunity the rule of by case, absolute laid down the Cluck but agree exception I cannot petitioner is as broad as con- tends. certainly The expressly hold, cases most do not and I holding, cannot read by exhibiting into them a his parts litigant immunity not loses opposite examination party, but, addition, under opposite party cross-examination, theory authorizes the with that examination conduct right manipulate agree experiment cannot with well. I as “Plaintiff expressed follows: as petitioner in its conclusions against examination and privilege a visual waive his cannot by manipulation against an examination insist on it as still * * * appropriate limited doctor cannot be means. other apply examination, must whatever a visual but be allowed reasonably necessary to determine the tests considers to be disability.” nature and the claimed true extent of Ry. principal case on relies is Langston, supra. That case was decided a divided Co. Justice Hunter without force. dissent may be, majority adopted ap- However view was proved Supreme exception and the to exception im- Court absolute munity say was created. did What the court was? exception language nature and extent the of is found the court, quoted approval the by of later with this court in Houston Ry. Anglin, (99 supra, follows, T. C. & Co. v. as 966) “But, appellee inspection : inasmuch as invited an making and by profert examination of her wounded limbs of * * * trial, right them on the object, she thus waived her to ground upon right personal the security, invasion of of her of proper to a and examination, reasonable under the direction of court, pm‘ts. the the thus, by voluntary wounded She her own of act, upon jurisdiction compel the court what other- conferred might she wise say language have to.” submit Does this refused by exhibiting legs plaintiff proffered her wounded the resulting right them in defendant, evidence the with the as way by cross-examination, of apply presence in the of reasonably “whatever tests necessary it considers to be to de- termine the and disability,” true nature extent of the claimed including manipulation certainly says foot? It. thing language and simple, of the court is too clear plain say by to be made construction or inference. Langston

In the right case defendant demanded the plaintiff’s legs by have the physicians, examined point at its one proceedings suggesting it be done “here and now.” plaintiff although motion, agreeing resisted the defendant’s to an examination disinterested medical witnesses. The trial overruling court’s action in the defendant’s motion was held to language Appeals error but so Court of Civil holding noting. objection is worth It appel- said: “The made

208- overruled, per- should

lee’s counsel have been witnesses there, at suoh other mitted then reasonable time place might appoint, proposed to make the examina- tion, give jury.” the result it to the Anglin simply

In the case this court reaffirmed the rule of Langston case, saying: upon case, “The rule acted in that the that, party person

tuhere has exhibited once his to(cid:127) the injuries, may required during to show the extent his he them, the course trial to re-exhibit never has been modi- saying cry court.” far fied person this This is a from that once must, exhibited his has manipulations reasonably necessary to such submit as are injuries! nature and to show the extent of his Galveston, Chojnacky H. authority & S. A. v.Co. for no being immunity right more than that waived the of examination language approved Langley exists and the court case' proper examination, was “to a reasonable and under the direction the court.” holding Lively, supra,

In Bower v. was that his injured eye plaintiff his immunity exhibition lost his ' by the examination defendant-. Ry. Sedberry, supra, Panhandle & S. F. d injured exhibite foot to the and the "of Court Civil Appeals granted held that the trial court “should have the de fendant have member examined under proper by physicians circumstances of the defendant’s selec holding right manipulate tion.” was no There here of the to in presence jury. the of the Kenney LaGrone, supra,

In v. plaintiff the exhibited her in- juries assigned and the defendant error to the re- grant appellant’s fusal trial compel of court “to to the motion appellee physical by to ap- submit to a examination doctors of pellant’s recognized general selection.” The court the rule of immunity involuntary recognized examination but also immunity that voluntarily was lost to one who exhibited injuries jury. to case, generally," the “In speaking court, said may the properly “the demand the that defendant plaintiff to reputable submit physi- reasonable examination * * cians selection *.” defendant’s of We now to Haynes come consider the Missouri "cáse of Trenton, principal supra. authorities Town It is one of the of judgment a upon petitioner in favor relies. In that case Supreme of and remanded the the was reversed grounds the deal at all with Court Missouri on problem did not written opinion here under search. The of the court was Barclay Brace and Chief Black and Justice Justice Justice separate judgment opinion. concurred in the and in that In justices concurring opinion, joined by any of not the other court, opinion McFarlane therefore not in the Justice the expressed the view the coui-t had also erred in refus- trial ing leg the require plaintiff, to the whose had been exhibited to jury, leg defendant’s to the for further examination submit to physicians language previously who examined it. There is opinion question to effect “the the the as to right injuries of the defendant to have an examination of the made, right weight but as the test the effect and reduce the plaintiff.” evidence introduced Aside from fact that expressed court, represent opinion the views did not question right involving only in fact one of examina- tion, experiment, nothing not of opinion and there show presence that the examination was to be conducted in the n (cid:127) jury.’ anlysis petitioner’s sup-

An authorities fails to furnish port majority holding for the that because the ex- hibited his thereby en- became titled, right, manipulate as a matter pres- the foot in the jury. fact, petitioner’s ence of matter As own in- cases exactly contrary foregoing analyses dicate as the show be- yond doubt. There are other cases which buttress conclusion injured party that an who does no more than exhibit his jury thereby member upon opposite party confers require a, another exhibition thereof so that such party may make like examination with the to have such further reasonable examination thereof may permit trial court in its discretion and di- rect’ It will be well to refer to some of these cases. Ry. Smith, the case of St. Louis S. W. 38 Texas App. history, Civ. 86 S.W. no writ decided after and light Langston case, court said: “But we are inclined to the appellee if eye exhibited his to jury, physician undertook, his then and there while tes- tifying, point to appellee’s eye, out the appellant to was

entitled in experts rebuttal thereof call to medical of its own eye, give testi- in examine the manner in like to selection such examination." a result

mony as their Bartek, Ry. Tex. & N. of International G. case In the 602, App., 213 S.W. affirmed Com. App., 177 S.W. Civ. refusing require err in to court did not the trial held that both back to exhibited his who plaintiff, a pointed in connec- witnesses medical defendant’s own of the defendant’s testimony, to to a doctor submit their tion with made, X-rays having of the back purpose of for selection X-rays agreed an- made to have particularly since he expert. competent and distinterested other Pemberton, Chicago, Ry. v. Tex. Co. R. I. & G. In the case refused, plaintiff in which the App., writ 170 S.W. Civ. jurors jury in manner that such his knee exhibited joint grating the knee was sound in the when hear the could refusing did not err in moved, trial court it was held submit, require under request plaintiff to the defendant’s experts. anaesthetic, defendant’s knee to examination Telegraph Mackay holding Co. made in the case of A like dism., App., Armstrong, writ Tex. v. Civ. knee, having injured proferí of his plaintiff, made which the placed right plaintiff demanded the have the defendant experts anaesthetic, laughing gas, while its medical an under demand not refusal of the was held examined the knee. The error, saying: contended as that the court “No assault any appellant permitted on the will liberty personal of this commonwealth.” citizen ex I found defendant’s have no case that treats the growing immunity plaintiff’s there out of loss of amination “right The courts do not treat of cross-examination.” from light. problem is illustrated the Illinois case in that This 330,339 Ry. Co., 267 Ill. 108 N.E. where it of Wheeler refusing is further insisted that the court erred is said: “It plaintiff’s physicians to examine the allow the defendant’s argument being that, leg presence jury; of the in the since injured jury, member de exhibited the physician physical fendant’s had a make examination then, they any leg the same as would have to examine appear other It does not exhibit case. the record leg plaintiff’s was made examination exhibiting than other the mere of the same to the jury. showing do think the mere We member

211 right privacy gave to invade the jury the defendants the to the extended plaintiff’s him to an scien- person submit make jury.” So, presence of in the the examination the same tific also, courts, A. P. own in the case of San Antonio & our one Stuart, Ry. App., refused, 178 writ Co. Tex. Civ. jury to have the has said: “It would better most cases being examination is made.” withdrawn while the illustrating graphically problem Another case that the is not scope one of of examination and cross-examination of witness Hockley, is the case of Peters v. 2d Ore. 53 P. plaintiff asserting A.L.R. case 1347. the the right presence jury have a demonstration made in the of the part right as a of her of cross-examination of the defendant’s Although appear medical witness. would it the demonstra- general tion made scope was well within the of cross-examina- tion tendency in that it had a to break down and the minimize testimony, effect of the Doctor’s pain resulted in outcries by plaintiff and it was held to be reversible error. question presented Thus far has been dealt with as though it arose in the negli- course of trial of a common law gence though suit and governed therefore as it were rules applying of law Treating problem thus, cases. I have following reached the conclusions from (1) the cases examined: injured party The has immunity absolute type involuntary opposite examination party represen- or his (2) immunity tatives. This if lost in the course of trial plaintiff injured part body exhibits the jury. of his (3) of immunity The loss right does not arise out of the of cross- right ensuing examination with the in the defendant to conduct presence in the examinations, of the manipula- all such experiments tions or body other such on the necessary destroy are evidentiary in the minds of the value, any, if (4) of the exhibition. immunity loss invests with presence defendant the absolute make general type same of exhibition or examination plaintiff. (5) as has been immunity made loss also invests the defendant with the make such further circumstances, prefer- examination under as is reasonable ably time, jury, place, out of the nature and examination, however, extent of such further to be fixed judge, respect being only upon trial his action error ~ showing of clear abuse of discretion. just enumerated it was not law rules the common Under permit to refuse to in this case for the trial error respondent’s manually manipulate witness medical petitioner’s in- merely exhibited his Respondent foot. de- could be front of the foot dicating extent The demonstration control. muscular pressed demonstra- with the in like manner was not conduct to wished fact, respondent’s by respondent. As a matter made tion respondent re-exhibit to did the have and have offered to counsel testify with could petitioner’s medical witness foot so the visual and from a thereof previous examination respect to his required Moreover, respondent to the was thereof. examination leg up pants the socks, to roll his pull shoes off both around presence and to turn knees, of the stand petitioner’s medical witnesses presence thereof so in the clarity respect greater to the condition testify with with could Respondent compared foot. the other foot as with of the however, not insisted, medical witness should that defendant’s presence of the manipulate manually the foot in the undertake respondent offering, nevertheless, submit to have jury, the while jury. general presence of out examination a to such discretion, judge, overruled in the exercise of The trial holding permit petitioner, that he would request of in effect presence requested only out of the type of examination ruling jury. many cited authorities heretofore Under the respect obviously of dis- not an abuse the court cretion. sought place type

That the time and of the of examination largely judge be who should left to the discretion of the has parties and the emotional him can illustrated factors before be manipulation Suppose from experiment the facts the instant case. permitted, respondent, had been not wish- ing experiment subject to be made the had, through control, impossible muscular made it except by for the doctor to bend his foot or his ankle unusual suppose, having effort or exertion? Or relaxed his muscular control, though suddenly cried out as pain, being there in the courtroom could one who know or say pain simulated, feigned? whether was real or actual or question It not a per- is of whether should have been mitted to run this at request; question risk its own it is a whether the required court should have risk been to incur the orderly such a processes disturbance of trial and courtroom decorum. negligence a a common actuality, trial of law this was compensation

case; case. In com- a a trial of workmen’s immunity injured party pensation lost his has cases through statutory provision. involuntary examination 4, provides Accident Board that the Industrial Article Sec. “may claiming any employee require to have sustained some examination such Board or submit himself for before acting authority place one under its at some reasonable time and State, may reasonably within the and as often ordered physician physicians practice the Board or authorized to to a provided of this It under laws State.” is further that if employee requests, or the insured “he or it shall entitled to physician physicians pres- have of his or its own selection participate ent in such examination.” held It that when a compensation court, power case reaches the court has same physical require Indemnity as the Board to examination. Ins. Murphy, App., Co. of North America v. Tex. 2d Civ. 53 S.W. history. Accordingly, compensation no writ when claimant already immunity becomes a witness in case he has lost his involuntary display from injured examination and his of rights respect. member can have no effect on his that right acquire can the insurer from a mere exhibition injured member in the courtroom is to have ex- another hibition of it for its benefit. If the insurer wishes a ex- more type specifically empowers tensive of éxamination the statute the court to at a place, order it reasonable and time with both parties right having represented to the suit to be at such by physicians examination of their own selection. petitioner respondent’s

When in this case demanded to have manually manipulated by physician, respondent’s its counsel agreed provided keeping examination it was made in statute, presence with the out of the re- with spondent having right a physician to have of his own choice present certainly at such examination. The law clothed the court power keeping with to order the statute, examination in with the petitioner not, right, could as a matter of demand more. injured The same statute which has taken from the workman immunity involuntary common his law from examination has respects marked out in certain the manner in which ex- conducted, amination shall be and has entrusted to the discretion of the Industrial Board Accident and of the duty courts the fixing place very time and the examination. The witness had twice respondent, involved before examined the the first days time two after the accident and the last about a be- month examination that even a third indicates The record trial. fore keeping with the terms of statute might have been “exhibit have the doctor its insisted on but lack of motion the motion and jury and demonstrate any” rules limitation, nor the in the foot. Neither statute if granted. required the demand be law common ruling on standpoint practical effect of our From importance the matter point of error the second petitioner’s length risk opinion. The inherent of this hardly justifies the plain- experimenting danger with the to the defendant likely make parts will tiff’s hand, the other rare indeed. On for that the demand holding majority set- from the departure made radical justifies, part at applicable to such demands law tled rules of problem involved. least, the nature of this review of ought point of to be overruled. error second Petitioner’s February Opinion 1953. delivered Smedley joins opinion. in this Justice Associate dissenting. Mr. Justice Smith agree and, case, therefore, re-

I cannot reversal of this register spectfully this dissent.

Respondent alleging suit filed this November years age, a minor an sustained on No- 29, 1949, employment vember while course with Works, Paragraph petition Inc. the Keetch Metal al- of his leges injustice hardship and would result unless the com- pensation paid sum, lump a due him is in and one of reasons agreed pay attorneys contracted and his one- recovery might any third of be awarded. allegations

Paragraph employ- 11 contains usual toas attorneys, agreement necessity ment therefor and his pay attorneys any recovery. one-third of On December Original 1950, petitioner containing special filed its Answer two Special exceptions. Exception Number reads as follows: One “Defendant prohibit moves the plaintiff Court to from reading allegations jury Paragraph to the pe- in 10 of said tition, plaintiff wherein lump award, seeks to a recover sum and motion, stipulates that, purpose for the of this defendant award, plaintiff permanent a event receives total and defendant sum; consequently, stipu- pay lump will same a view of the aforesaid, allegations hardship lation of manifest and in- justice any case, are not material or relevant to issue in the and permit jury same to read to and considered would tendency jury greater cause have a to cause to find a dis- longer ability period of time than the facts war- otherwise rant, allegation consequently, reading jury and said to the prejudicial and, foregoing and is will be to this defendant of the motion, judgment prays defendant Court.” exception

The trial court sustained this to which action plaintiff excepted, paragraph and ten read was not to the evidence introduced and no issue was submitted on the lump question of sum award.

Special Exception Number Two reads as follows: prohibit plaintiff reading “Defendant moves the Court to allegations jury Paragraph to the 11 and else where in petition, plaintiff alleges said attorney employment wherein of an agreement pay and recovery him one-third of herein, for the reason that same is not a controverted fact be- defendant, tween and an is not issuable fact to be jury submitted sole province its juris- ais distinguished dictional one to enable jury the Court as from the attorney’s fee; to fix reasonable permit and to same to be read jury to and considered tendency cause would or have a greater disability longer to cause the to find a period for a warrant, of time than the facts and to read same the purpose prejudicial defendant; therefore this and for the motion, stipulates that, defendant in the event aof total permanent award, pay lump sum, defendant will same in a foregoing motion, judgment prays defendant Court.” exception paragraph

This was overruled and 11 was read jury. passing Special Exception It will noted on Two, Number paragraph the trial court had before the contention that

11 should not be read to the for the reason that attorney’s jurisdictional matter of question, fees was and its only purpose jury was to enable the court and not the to award attorney’s fee, a permit and reasonable the further contention “to that same read and jury to be to considered would 2Í6' jury greater dis- tendency a a to'cause have cause find warrant, longer period and ability time than the a facts for prejudicial this de- jury therefore read the same * * place, the issue added). (Emphasis In first

fendant in the next jurisdictional question, and attorney’s a fees is not contention support place, in this case does not the record greater respondent period of dis- a jury awarded that charge in- ability warranted. The its than the facts case, you “During your jury, on this deliberations structed any consider, not in evidence not discuss or relate matters will you the effect you, into and will not take consideration before your merely case, may loses the but have on who wins or answers you may find facts from the evidence questions answer the as given you and and instructions under the definitions before you herein.” Court, Transport case Motor

This of Gillette Whitfield, 2d said: 145 Texas W. S. “Presumably, jury the instruc- understood and followed cited). And, so, they (Authorities if tions con- the Court. proper consider sidered that which it for them to was presume injury. the defendant cannot suffered We misapplied misunderstood and the Court’s instructions considered, not considered matters which it should have then upon unsupported presumption.” a reversal such an base propounded questions do answers charge disregard a show reckless oath to its follow the Court, but, hand, gave fair, on the other reflects that the impartial intro- unbiased and consideration all the evidence during pages of duced The record contains 569 evi- trial. dence and the Court raised such evi- submitted issues respondent dence. The ability, found that sustained total dis- disability temporary, but that total and that period incapacity continued weeks. It found partial incapacity par- sustained that such 75% incapacity permanent. tial given litigants This has Court never indication reading attorney’s preju of the clause relative to fees was Corpora Employers’ dicial tion, Limited, In the Liability case of Assur. error.. Sims, Refused, 2d the Court Writ question special exception, before the same raised error, case, in this case. this Court refused writ of thereby adopted gave as its own. The Court three

217. to, error separate why. was not reversible and distinct reasons it true, issue pleading jury. the question It is read the under question, involved, lump from that of sum award was but aside the Court said: ap- overruling do

“We not think error in there was reversible pellant’s reading objection jury in the the the of the clause petition, alleging pay one- petitioner had contracted to that the Such, statutory recovery of his contains third clause as fee. attorney necessary allegation judgment for the to award the case, appellee’s statutory recovery. fee out of contested In a arising (Rev. Compensation St. under the Law Workmen’s pass seq. amended), permitted Art. 8306 et as the is not upon recovery the A deter- amount of the awarded. to be working only injured employee mines whether while such was character, extent, employment, in the of his and dura- course the injury, and, findings, tion of the on these the court fixes the recovery findings, statutory of amount the under man- from such date, respect in adjudged. to the sum be The court that must also attorney sought finds fee, the re- reasonable which is be covered, apportions statutory recovery, and in- between the jured employee attorney, find- and his in with accordance ing. If, however, we should mistaken the conclusion it jury permit appellee was not error to counsel to read to for petition seeking recovery the clause in the the attor- of ney fee, is nevertheless there shown reversible error case, clearly appears harmless, instant for such error to be weekly wage appellee received, the evidence of the found' as by upon undisputed, practically is based evidence finding appellee permanent and the received dis- total ability upon great preponderance is based evidence. affirmatively appears appellant’s rights It therefore were way prejudiced ruling in no court.” case,, Employers’ Liability In the instant Assur. as Corporation, Limited, Sims, supra, permitted was not pass upon awarded, only recovery the amount :of to be passed on respondent whether the' the course employment, character, injury, extent and duration weekly wage just the amount of fair which would be both question defendant. evidence on average wage weekly undisputed; and the evidence on all the findings jury; issues sustained I am further of the that the in this case lump by way cannot special eliminate the issue of sum award sus- have trial court to exception, error for the and that it was lump sum award exception issue as it did. The tained the methods— one of two one decided of fact can trier of either if raised the evidence submit issue pro- facts, agreement parties. a manner ceeded in far is concerned this case so issue exception could binding special it. The would not on any the evidence. the close of have been withdrawn at time before right to respondent deprived The should not have been lump plead recovery prove and all the facts essential to offered, agreed with- sum and petitioner unless and until had might reservation, awarded pay judgment out whatever so plaintiff, agreement accepted and had been and offer respondent.

By point court its second the trial contends that refusing witness, Butte, erred in man- permit Dr. defense agree ipulate respondent’s jury. I presence foot in the of the with Mr. Justice of the court Calvert the action error, go say but I on reversible if it it was not was error error. true, but, jury, It in foot to the exhibited his manually doing,

so he did not make demonstration such as taking hold of not the his foot. main in this case was issue joints re- existence and extent spondent’s in of limitation of motion ankle, dura- foot and and what was the extent but tion parts other affected whether extended or and body. of his length. great

The record shows that Dr. at Butte testified testimony begins His page facts on statement of page ends page appears on question 407. to which At objection. question sustained was: “Doctor, I you you will ask if will exhibit limitation, demonstrate any, if the motion ánd motion and lack of young in this man’s foot?” “had Exceptions

Petitioner sets in No. 3 that out its Bill of permitted inspect plaintiff’s foot, Dr. Butte been to examine and leg, ankle and manually in same of to flex pointed fully could have demonstrated out and added). (Emphasis at time of the trial”. “1. completely That tremen- recovered from a large blisters, dously abra- swollen foot and ankle and the places Dr. Butte observed sions and skinned over his foot which December, 1949, first within the on the in first examination question. week of the accident in first, third, fifth

“2. fourth and That the fractures completely plaintiff’s healed metatarsal in foot had bones good alignment; were good plaintiff’s completely normal, “3. That heel bone was alignment it; freely of motion moveable with no limitation plaintiff’s right joint

“4. com- That and ankle were ankle pletely normal, swelling, freely moveable, pain limi- with no tation joint; of motion in the ankle or ankle complete swelling

“5. plain- That there awas absence foot; tiff’s slight

“6. That there was some limitation of motion in the toe; however, good joints there was motion of the in the rear of complete the foot which allowed the foot turn in and freedom to out; to turn normal, align- completely good

“7. That the heel bone was ment, freely moveable; and slight gave

“8. That a fusion of the a cunieform bone rise to foot, of forepart however, limitation motion of the of pain; fusion causes no joints

“9. govern That the in the of which rear the foot entirely motion of the foot from side to side and were normal ankle; there was no limitation of motion in the rear of the foot or walking “10. plaintiff That extended would cause to have a slight limp due to limitation of motion in the and fusion toes bone; however, any slight limp cunieform limi- due to the forepart tation plaintiff’s of motion in the of foot not would any pain disability hip cause or in his or back and would not body affect generally; or extend the in his foot to his right shortening plaintiff’s “11. leg; That there is no pain back; “12. spasm plaintiff’s That there is no muscle plaintiff’s injuries right foot; “13. That are confined to his “14. That the plain- of a soft tissue tumor between removal successful; tiff’s and disability first second toes was existed tumor, in his and the circulation foot from the removal good way impaired; and and in no comparison plaintiff’s feet

“15. and left That substantially amount shows that same suffers of flat feet.” feet both asking taking Bill quoted question

Prior the above first Exception doctor had that he saw No. testified accident, days re- after and that two trial; first examined on the him before about one month examination, respondent “tremendously foot swollen had a fairly ankle; particularly a There number the foot. were large foot, over the abrasions blisters few small looking com- skinned doctor testified in places on foot”. The plete findings detail as to result of the exami- as the second great extent, testimony, nation. same This However, expected prove. some stated he Exception. testimony contrary the Bill of to that set out in example: appeared For tenderness “There to be considerable pal- about the we the foot mid-foot when tried examine top pate particularly tender on foot. It seemed to be region scar;” operating of this “Q. picture any mass Does that there show solidification the' bones which makes them immovable? probably

“A. I think these cunie- there is some fusion between form I think that bones and the base third metatarsal. together.” joints grown those are obliterated or say pain. did doctor did fusion causes no He say anything picture that he could not find in “that could be say: any any pain.” indicative “The of cause for went on to He deformity that fractures fact there is a of of one of the little bit may pain completely cause some in the foot. It doesn’t function Therefore, may painful.” normal. somewhat conclusively The in case that record this shows injury permit suffered refusal to the doctor the Court’s manipulate plaintiff’s foot the foot. There is no evidence that the trial, April May 1951, than in was different in date manipu- How could the when Dr. last examined him. Butte anything in add lation the foot testimony to manu- ? doctor would be able Proof that the doctor’s ally" proof did that forcé the foot' move would portions of his affected other pain foot which suffer in' the hot body. Butte, propounded Dr. following question, hypothetical motion It no reference to in the made

was based on facts case. question reads: lack of motion in the foot. or “* * * Hatton, 19 Now, Butte, that Arthur C. Dr. assume working years age, condi- at air on was November — tioning working was works that I mean for a sheet metal ceiling installing conditioning room simi- ducts air in a tall for that, something Courtroom, high, lar to like 15 to 20 feet high being and a on to that was used stand scaffold that ceiling it, up planks fasten and the duct on while being scaffold on the was moved on the and while he was floor floor, heavy weighing pounds, a approximately 125 timber plank board or fell off the fell down and hit scaffold and end right foot; on top. him after that he was hos- assume that pitalized approximately Hospital, and for month St. Paul’s period in was after that confined for and then to bed some of time re-hospitalized April 1950, hos- about 10th of where he was pitalized days Hospital, for about then ten and Methodist where he eruptions you for treated skin or calí whatever it, again hospital- foot, from some medication used on his Hospital days in period ized Methodist of about ten operation when an performed on his foot that resulted long a scar top about five inches on the foot—and I am sure you you saw scar when examined him month —and that last he, dúring period got bed, up all of time after he eight used two approximately crutches for nine or months to get move up around operation, when did from bed after the putting and that crutches, walking after down the without crutches pain through he had in his which radiated leg hip back, his part into his and in his the low pain he has attempts had that from and since time on all walk, pain and he hip had no his back and no trouble hip with his happened, you and back before this accident would pain tell the hip back his was not related to accident that he had on November 1949?” “Q. My is, question facts, with that related statement you tell the is no connection would pain there between part hip his low back with the to his foot?”:

' ' “A. I say wouldn’t there was no connection.” plaintiff’s supporting up question

This sums the evidence contention, were admitted if such evidence and the doctor respon- true, limp pain then a foot would affect dent’s back. Crone, Kenny La S. W. the case of

Petitioner relies on “voluntarily person exhibits the 2d which held when case, during injured part body the trial of his of his inviolability person thereby waives the inherent speaking case, experts. immunity In such from examination generally, may plain- properly demand that the defendant reputable physicians tiff to reasonable examination submit selection, refusal of trial court’s defendant’s defendant’s therefor constitutes error.” motion holding, you part to me it seems

When read this However, contends does not what for. mean question meant my opinion, no as what the Court there can be following: say “But such error does when it went on ap- necessarily require a It the error has reversal. when parently injury probably or to the defendant resulted ** judgment the court held should reversed Then apparent probable affirmed the made had been granted, 2d 93 S. W. case. A writ of error was 397, application, point not carried forward but this therefore, in its was not the Court discussed affirmance. Ap- judgment trial court the Court Civil

peals should affirmed. February

Opinion, 1953. delivered Company, York, The Home Insurance New v. Joe M. Rose. February 18,1953.

No. A-3853. Decided Rehearing overruled March 1953. 861) (255 2d Series

Case Details

Case Name: Texas Employers Ins. Ass'n v. Hatton

Court Name: Texas Supreme Court

Date Published: Feb 11, 1953

Citation: 255 S.W.2d 848

Docket Number: A-3837

Court Abbreviation: Tex.