G. A. Duerler Mfg. Co. v. Eichhorn

• Decision Date: 09 January 1907
• Citation: 99 S.W. 715
• Court: Texas Court of Appeals
• Parties: G. A. DUERLER MFG. CO. v. EICHHORN.<SMALL><SUP>*</SUP></SMALL>

99 S.W. 715

G. A. DUERLER MFG. CO. v. EICHHORN.^*

Court of Civil Appeals of Texas.

January 9, 1907.

Rehearing Denied February 13, 1907.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Jessie Eichhorn against the G. A. Duerler Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Keller & Keller, for appellant. C. A. Davies, for appellee.

NEILL, J.

This suit was brought by Miss Eichhorn against appellant, a private corporation, to recover damages for personal injuries inflicted by the negligence of the defendant while she was employed in its service. The defenses pleaded were assumed risk, contributory negligence, and negligence of her fellow servants. The trial resulted in a judgment in her favor for $5,000.

Conclusions of Fact.

On November 14, 1904, while plaintiff was at work as defendant's servant in its pecan factory, a barrel fell from the joist overhead upon her head, knocked her down, and inflicted upon her serious and permanent physical injuries. Its fall was caused by defendant's negligence in placing the vessel insecurely on the joist above the floor of the building, where his servants, among whom was plaintiff, were required to do their work. The plaintiff did not assume the risk of such negligence, nor was she guilty of any negligence proximately contributing to that of defendant which caused her injury, nor were her injuries inflicted through any negligent act of a fellow servant. The damages sustained by reason of defendant's negligence were as assessed by the jury.

Conclusions of Law.

1. Courts and text-writers, without reference to any recognized rule or principle, all concede the admissibility of the opinions of nonprofessional men upon the questions of health and sickness. The question of good or ill health of an individual requires no scientific knowledge to enable one who is well acquainted with him to form an opinion upon it. One man hardly ever meets another without forming an opinion as to his health, which arises from his observation and the appearance of the particular individual. Therefore we have no doubt that the following testimony of Mrs. Lusk, who had known plaintiff for 12 years, viz.: "She was always in good health while I have known her up to November 14, 1904. Her health was always the same up to that time. Since November 14, 1904, her health has not been good at all. She has fallen off in weight. This condition of her health has lasted ever since November 14, 1904," was competent to show the state of plaintiff's health before and after the date of her injury. Besides, the witness testifies specifically to facts which, if true, show the ill health of plaintiff after she was struck by the falling barrel. Even as to questions involving scientific knowledge, such as mental condition, etc., a nonexpert may testify as to his opinion, if he give the facts upon which it is based. Galloway v. S. A. & G. Ry. Co. (Tex. Civ. App.) 78 S. W. 33. We therefore overrule appellant's second assignment of error, and the third, fourth, fifth, and sixth, which complain of testimony of the same character.

2. Counsel for appellee asked Dr. Hooker this question: "I will ask you whether or not a person who has been standing up and who has been hit by a barrel weighing from 20 to 28 pounds and had been knocked unconscious by the barrel and had fallen to the floor backwards, whether or not that condition you found existing, could or could not it have been produced by that fall? And the witness answered same by saying: `Why, I think it undoubtedly would.'" The question and answer were objected to by appellant upon the ground that no predicate had been laid for the question, but it assumed as facts the matters embodied, as though testified to, and permitted the witness to decide a question which should have been left to the jury. We are unable to determine from the statement in appellant's brief whether or not a sufficient predicate was laid to authorize the question which called for the witness' opinion; for it does not show what testimony, if any, had been introduced in regard to the matters embraced by the interrogatory. Therefore the question raised by the seventh assignment of error is not presented by the brief in such a manner as entitles it to consideration.

3. We cannot perceive there was anything wrong in appellee's counsel, in his address to the jury, though nearly all its members were Germans, speaking of his client as "this honest German girl," and asking a verdict in her favor—it not appearing that he sought the verdict because she was an "honest German girl," but upon the ground she was entitled to it under the evidence from any jury, regardless of the nationality of its members or of plaintiff. Though such characterization of his client may not have been authorized by any testimony in the record, she was the principal subject-matter of the testimony; and, if she were German, and the members of the jury Germans, it must have been apparent to the jury that she was a German girl, and the law presumed her to be an "honest girl." But counsel, in his speech to the jury, spoke of Miss Eichhorn as a "penniless girl." He ought not to have done that. A verdict should not be sought upon anything save evidence in the record pertinent to the issues in the case; for it rests upon nothing else. The strongest guard that conscience can muster should be placed over a jury where there is "a woman in the case," and her lawyer ought to be satisfied with the fact that his client is a woman, and not "roll it under his tongue as a sweet morsel," that she "is penniless" and throw it out for the jury to ruminate upon, lest it excite the sympathy of its members, and put conscience to flight and warp their judgment. But as "a wise man foreseeth danger and shunneth it," the trial judge instructed the jury not to consider the remark of counsel as to her being a "penniless girl," saying that plaintiff's condition had nothing to do with her right to recover. Plaintiff's counsel also asked the jury not to consider the remark, but to find a verdict alone upon the facts. It should be presumed, therefore, that the jury regarded the instruction of the court, and its verdict was not influenced by the remark.

4. The eighth and ninth assignments of error complain of the court's not granting the appellant a new trial because of uncalled-for strictures of appellee's counsel on the character of two doctors who testified in the case. It is not shown by the statement in appellant's brief that the testimony of the two gentlemen, or of either, was favorable to defendant, or material to any defensive issue. Therefore, we cannot say that there is any reason to believe that the appellant was prejudiced by this pasquinade of counsel. We can hardly think, however, if the testimony was material, the jury could have been affected by the gratuitous assault upon the character of the witnesses, who are reputable, learned, and skilled physicians. Such conduct would be more likely to injure plaintiff's case than defendant's.

5. Special charges Nos. 2 and 3 define the term "fellow servant" and Nos. 5 and 6 seek to have the doctrine of fellow servant applied to the case. In passing upon the assignments of error which complain of the court's refusal to give them, we do not think that they should be considered separately, as though they were detached and had no connection one with the other; but they should be construed together...