Missouri, K. & T. Ry. Co. of Texas v. Johnson

• Decision Date: 07 April 1902
• Citation: Missouri, K. & T. Ry. Co. of Texas v. Johnson, 67 S.W. 768 (Tex. 1902)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON.
• Court: Texas Supreme Court

67 S.W. 768

MISSOURI, K. & T. RY. CO. OF TEXAS v. JOHNSON.

Supreme Court of Texas.

April 7, 1902.

Error to court of civil appeals, Fifth supreme judicial district.

Action by Walker Johnson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff affirmed by the court of civil appeals (67 S. W. 769), and defendant brings error. Affirmed.

T. S. Miller and Head & Dillard, for plaintiff in error. Wolfe, Hare & Semple and Cummins & Mathis, for defendant in error.

WILLIAMS, J.

This is a writ of error prosecuted from a judgment of the court of civil appeals affirming a judgment of the district court in favor of defendant in error against plaintiff in error for damages for personal injuries. One of the questions over which there was a sharp controversy in the trial was as to the extent of the injuries and damages sustained by defendant in error.

A bill of exceptions in the record recites that Dr. Field was introduced as a witness in favor of plaintiff below, and testified that about six months before the trial he had examined plaintiff for the purpose of ascertaining the nature and extent of his injuries, not for treatment, but only in order to qualify himself to testify as an expert in the trial; "that on such examination plaintiff complained of suffering considerable pain in certain portions of his back, and, when he [witness] would stick pins in him along his right leg, he would exhibit no signs of suffering pain, but, when he would stick pins in him at corresponding places on his left side, he would flinch and complain a great deal." The bill of exceptions further states that before the introduction of this evidence the defendant objected to the witness testifying to anything plaintiff said, and to anything plaintiff did, while he was being examined by physicians for the purpose of testifying in the cause, and not for the purpose of being treated, on the ground that the evidence would be self-serving, hearsay, immaterial, and irrelevant, and that the objection was overruled; the court holding "that everything that plaintiff said and did to the physicians while being examined under such circumstances would be admitted." Plaintiff was injured August 16, 1899, and the trial occurred in March, 1901. The examination made by Dr. Field, therefore, took place more than a year after the plaintiff was hurt. The evidence of Dr. Field, as set forth in the statement of facts, states the appearance of a previous injury to plaintiff's back still existing when he made the examination, and proceeds: "He complained of considerable pain, and, upon any attempted movement, would complain a great deal." Then follows the statement copied in the bill of exceptions. This writ of error was granted because the court thought there was error in the admission of the mere declaration of plaintiff of the fact of his suffering pain, made to an expert, on an occasion prepared by himself, for the sole purpose of furnishing the expert with information on which to base an opinion favorable to plaintiff. That such declarations, made under such circumstances, are not admissible, is held by many authorities which seem to be better supported by reason...