Bower v. Lively

• Decision Date: 31 October 1928
• Docket Number: (No. 7287.)
• Citation: 11 S.W.2d 556
• Parties: BOWER v. LIVELY.
• Court: Texas Court of Appeals

11 S.W.2d 556

BOWER v. LIVELY.

(No. 7287.)

Court of Civil Appeals of Texas. Austin.

October 31, 1928.

Appeal from District Court, Dallas County; R. T. Brown, Judge.

Action by T. H. Lively against Thruston Bower and another. Judgment for plaintiff, and named defendant appeals. Reversed and remanded, with directions.

Joe Moore, of Houston, for appellant.

Claude C. Westerfeld and Currie McCutcheon, both of Dallas, for appellee.

BLAIR, J.

Appellee sued C. L. Bower and appellant, Thruston Bower, individually and as a copartnership operating automobiles for hire as a common carrier, under the firm name of Bower Auto Rent Company, for damages for personal injuries alleged to have been sustained when their automobile, in which appellee was riding as a passenger for hire was run off the road, overturned, and wrecked. The negligence alleged was predicated on the doctrine of res ipso loquitur. At the conclusion of the evidence, the jury were instructed (a) that the evidence established negligence, and (b) to "consider only the questions whether or not the plaintiff was injured in the wreck; if he was, the extent of his injuries, if any, and the amount of damages, if any, he sustained thereby." Proximate cause was defined, the rule or measure of damages given, and the jury were asked to find what amount of damages, if paid now, would compensate appellee for his injuries shown by a preponderance of the evidence to have "been directly and proximately caused by the wreck involved in this lawsuit." The jury answered that $11,000 was the amount of the damages suffered, and judgment was rendered for appellee for that sum, from which judgment this appeal has been perfected.

As a preliminary, we will state that this case is a companion case to the case of Bower Auto Rent Co. v. Young (Tex. Civ. App.) 274 S. W. 295, in which a writ of error was refused by the Supreme Court, and wherein several of the questions here involved were decided against the contentions here made by appellant.

Also, as a preliminary, we overrule appellee's motion to strike out the bill of exception and statement of facts herein, because not filed in time, as not being supported by the record.

The error presented by appellant's fifth proposition requires a reversal of this case, and we therefore pretermit, except as directions on another trial of the case, any discussion of appellant's other propositions or assignments of error, for the reason that the alleged errors may not occur on another trial. The fifth proposition, which we sustain, reads as follows:

"Where a plaintiff exhibits to a jury his eyeball by raising the eyelid and rolling the ball around, said eyelid being customarily closed and the jury not being able to see the eyeball, he thereby waives the inviolability of his person, and it is error to refuse to require him to submit before the jury to an examination by physicians selected by the defendant."

Appellee testified that his right eye had remained permanently closed since and as the result of injuries sustained in the accident. A photograph of himself showing his right eye to be closed was introduced in evidence. This he testified represented the permanent condition of his eye since and as the result of injuries received in the accident. In this connection appellee testified as follows:

"I can see out of this right eye when I take my hand and raise this lid, but I see two of everything. I can shut this eye and turn way around this way and now I can see you but I can't move that ball one way or the other. I can't move my right eyeball."

Another photograph of appellee was introduced, showing him lifting the upper eyelid of his right eye with his fingers, and in order that the eyeball might be seen. He was then directed by his counsel to raise with his fingers the lid of the injured eye in the manner shown in the photograph, and to exhibit the eyeball to the inspection of the jury, which he did, and while doing so testified as follows:

"The eye is there but I can't see out of it at all — I mean I see double when I raise this lid. * * * The lid of the right eye comes over the eyeball and completely covers it, and I can't raise it at all, see here."

At the conclusion of appellee's evidence, and when he had rested his case, appellant filed two motions to require appellee to submit his person and his alleged injured eye which he had so exhibited to the inspection of the jury to an examination by experts or physicians selected by appellant. The court overruled the motions because, "the plaintiff having refused to have said examination of his eye by experts, the court is of the opinion that said examination should not be granted." In other words, the court simply applied the rule of inviolability of the person in refusing to grant the motions. This was clearly error, because appellee waived that rule when he offered his eye and eyelid for the inspection of the jury.

In the case of Galveston, H. & S. A. Ry. Co. v. Chojnacky (Tex. Civ. App.) 163 S. W. 1011, it was held as follows:

"The most effective way to contradict the testimony of appellee was to have an examination of his eyes by experts, who could test the extent of his vision. But that examination could not, at any time, be demanded by appellant unless appellee permitted an inspection of his eyes by the jury. The moment, however, that he submitted his eyes for examination to the jury, he doffed the armor placed on his person by the hand of the law, and was the subject of examination of experts."

Appellee contends, however, that we should not follow this case, for the following reasons:

(1) That it declares an erroneous proposition of law, and should be overruled. We do not sustain the contention. The decision is supported on principle by the Supreme Court decisions therein cited, and is therefore the settled law or policy of this state with reference to waiver of the inviolability of the person rule.

(2) That the bill of exception should at least show what appellant expected to prove by the experts. If...