Commercial Standard Ins. Co. v. Robinson

• Decision Date: 09 April 1941
• Docket Number: No. 2353-7609.,2353-7609.
• Citation: 151 S.W.2d 795
• Parties: COMMERCIAL STANDARD INS. CO. v. ROBINSON et al.
• Court: Texas Supreme Court

151 S.W.2d 795

COMMERCIAL STANDARD INS. CO. v. ROBINSON et al.

No. 2353-7609.

Commission of Appeals of Texas. Section A.

April 9, 1941.

Rehearing Overruled June 11, 1941.

Error from Court of Civil Appeals, Second Supreme Judicial District.

Suit under the Workmen's Compensation Act by Henry Robinson and others against the Commercial Standard Insurance Company to set aside an award of the Industrial Accident Board. Judgment for plaintiff was reversed by the Court of Civil Appeals, 91 S.W.2d 1147, and on writ of error, the Supreme Court, 132 Tex. 163, 123 S. W.2d 337, reversed and remanded the case to the Court of Civil Appeals. To review second judgment of Court of Civil Appeals, 126 S.W.2d 1026, affirming trial court's judgment in favor of plaintiff, defendant brings error.

Judgment of the District Court and of the Court of Civil Appeals reversed and cause remanded.

Robertson, Leachman, Payne, Gardere & Lancaster and Neth L. Leachman, all of Dallas, and Gus M. Hodges, of Austin, for plaintiff in error.

R. M. Vaughn and John W. West, both of Dallas, for defendants in error.

W. H. Hall, of Dallas, amicus curiae.

HICKMAN, Commissioner.

This is a compensation case. In the trial court judgment was rendered in favor of the employee against the insurance carrier as for total permanent incapacity payable in a lump sum. The insurance carrier appealed to the Court of Civil Appeals and that court dismissed the appeal on the ground that the district court had no jurisdiction of the case. 91 S.W.2d 1147. Writ of error was granted and this court reversed the judgment of the Court of Civil Appeals and remanded the case to that court. 132 Tex. 163, 123 S.W.2d 337. After the remand the Court of Civil Appeals affirmed the trial court's judgment. 126 S.W.2d 1026. The case then came back here upon application of the insurance carrier, which was granted.

The Court of Civil Appeals refused to consider certain assignments of error brought forward in the brief of the appellant in that court. In this we think it erred. This case was tried before the opinion was released in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, announcing an amendment of Rule 71a governing district and county courts and under the decision in that case this case is to be governed by the rules announced in such cases as Phillips Petroleum Company v. Booles, Tex. Com.App., 276 S.W. 667. Under such rules the assignments should have been considered.

Many errors are assigned in the application. We have determined that there is one assignment which clearly must be sustained. The result of so doing will be to reverse the trial court's judgment and remand the cause for another trial. The other errors assigned will in all probability not arise upon another trial and they will therefore not be discussed here.

The question upon which our decision is based arose in this manner: The principal fact issue to be determined in the trial court was the extent of the employee's injuries. It was the position of the insurer that his condition was largely psychic. The employee, on the other hand, based his suit upon the ground, sustained by the jury, that he had suffered total and permanent incapacity. While a doctor was on the witness stand testifying as an expert for the insurer, a question arose as to the right of the attorney for the insurer to propound a certain question to him. The jury was retired and in its absence the court ruled that counsel could not ask the witness this question: "Let me make a record of what the doctor's answer would be. If I should ask you the question—I am going to ask it of you now—I want you to state whether or not in your opinion this man, Henry Robinson, the plaintiff in this case, will be materially benefited when this lawsuit is tried, irrespective of the outcome of it?"

Exception was taken to the ruling of the court and it was made to appear that the doctor, if permitted, would have testified, in substance, that the condition of the claimant was largely caused by worry over his lawsuit, and that when it was finally disposed of his condition would be materially benefited. If the court erred in excluding such testimony, then the case must be retried. We are well convinced that it did err in so doing. The theory upon which expert testimony is admitted requires that the expert be permitted to state the reasons or grounds upon which his opinion is based. It also requires that the witness be permitted to testify as to what, in his opinion, caused the condition as to which he is giving expert testimony. It would have been perfectly permissible for this doctor to have testified that, in his opinion, the employee's condition was due to a physical injury as claimed by him. In this case it is made to appear that it was the...