Pacific Employers Indemnity Company v. Garcia

• Decision Date: 27 March 1969
• Docket Number: No. 381,381
• Citation: 440 S.W.2d 335
• Parties: PACIFIC EMPLOYERS INDEMNITY COMPANY, Appellant, v. Enrique G. GARCIA, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 335

440 S.W.2d 335

PACIFIC EMPLOYERS INDEMNITY COMPANY, Appellant, v. Enrique G. GARCIA, Appellee.

No. 381.

Court of Civil Appeals of Texas Corpus Christi.

March 27, 1969.

Rehearing Denied April 17, 1969.

Keys, Russell, Watson & Seaman, M. W. Meredith, Jr., Corpus Christi, for appellant.

William R. Edwards, Corpus Christi, Arnold Garcia, Alice, for appellee.

OPINION

SHARPE, Justice.

This appeal is from a judgment in favor of Enrique G. Garcia, appellee, against Pacific Employers Indemnity Company, appellant. Garcia sued to recover benefits under the Workmen's Compensation Law . After jury trial, judgment was rendered awarding appellee compensation for 401 weeks at $35.00 per week, based upon total and permanent disability, plus medical bills, less credit for weekly compensation payments totalling $525.00 theretofore paid by appellant.

Appellant asserts four points of error. Its first and second points are as follows:

'FIRST POINT

'The trial court erred in allowing Plaintiff's attorney to cross-examine Defendant's medical witness, Dr. Norstrom, by reading statements from medical texts not recognized by the witness, which tended to discredit Defendant's expert medical witness in a way not allowed by law, implying that the texts contained authoritative information when under the circumstances it was only hearsay.

SECOND POINT

'The trial court erred in allowing Plaintiff's attorney to indicate to the jury that his reading of statements from unrecognized texts, over Defendant's objections, were 'medical facts', and that any nonrecognition by Defendant's medical expert of such statements, or any disagreement with such statements, was the nonrecognition or disagreement with 'medical facts'.'

On the trial of the case appellant called as a witness Dr. Craig W . Norstrom, a neurosurgeon of Corpus Christi, Texas. During cross-examination by counsel for appellee, Dr. Dorstrom was asked if he recognized certain books as autoritative. In particular, Dr. Norstrom was asked about Campbell's Operative Orthopedics. He testified that it was a recognized work in the field of orthopedics. When asked if he recognized that work as authoritative in the field of lesions of the lumbar intervertebral disc, Dr. Norstrom said 'I don't know that much about it.' Dr. Norstrom was also asked about Dr. Samuel L. Turek, or if the witness ever had occasion to cite Hollander and Collaborators Arthritis or if he ever had occasion to see any works of Philip D. Wilson. Dr. Norstrom testified he never heard of Dr. Turek, and couldn't recall having heard of or citing the other authorities or works. In those instances where Dr. Norstrom had not heard of or did not recall the authors or works mentioned, counsel for appellee then asked additional questions which were framed in terms of whether the witness agreed with counsel concerning statements incorporated in the question, referred to as matters of medical fact, regardless of whether the witness had heard of or recognized the authority or work previously inquired about.

Appellant's first two points are based upon the premise that counsel for appellee was permitted, over objection of appellant, to read into evidence excerpts from the texts or works with which Dr. Norstrom was not familiar or did not recognize as authoritative. Appellant's basic position here is that a medical witness cannot be cross-examined by reading excerpts to him from a medical book and asking him whether he agrees or disagrees therewith, unless he has either recognized such book as authoritative or has based his opinion in whole or in part thereupon, citing American Motorists Insurance Company v. Williams, 395 S.W.2d 392 (Tex.Civ.App., Ft. Worth, 1965, ref'd n.r.e.); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Gravis v. Physicians & Surgeons Hospital of Alice, 415 S.W.2d 674 (Tex.Civ.App., San Antonio, 1967, reversed in part on other grounds, and affirmed in part, 427 S.W.2d 310, Tex.Sup .Ct.1968, after appellant's brief was filed herein); Gray v. L-M Chevrolet Company, 368 S.W.2d 861 (Tex.Civ.App., El Paso, 1963, ref'd n.r.e.); Texas Employers' Insurance Ass'n v. Nixon, 328 S.W.2d 809, 812 (Tex.Civ.App., Houston, 1959, ref'd n.r.e.). Appellee does not disagree with the rule stated by appellant but contends it is here inapplicable.

Counsel for appellant did not object to the form of the questions asked by counsel for appellee, but, rather, as to the alleged fact that he was reading from a book in connection with the questions propounded. The principal difficulty with appellant's position under its first two points is that the record does not show that counsel for appellee told the court or jury or indicated to either of them that he was reading from the books which Dr. Norstrom did not recognize, nor does the record before us show that he was doing so. On one occasion counsel for appellant asked counsel for appellee to specify what the latter was referring to in his question and counsel for appellee replied: 'My question is what I am referring to.' We, therefore, cannot hold on the record before us that counsel for appellee read statements from medical texts or that he indicated that such texts contained authoritative information (when under the circumstances they were hearsay) or that counsel for appellee cross-examined Dr. Norstrom in an improper way which tended to discredit his testimony. Neither can we hold that counsel for appellee indicated to the jury by reading statements from texts unrecognized by the witness in such a way that his nonrecognition or disagreement amounted to nonrecognition or disagreement with medical facts.

If a question of the type here involved is otherwise proper, it is not objectionable solely because a statement in it is framed with the aid of a book or other written material, the identity or source of which is not disclosed to the jury. See Fidelity and Casualty Co . of New York v. Davis, 354 S.W.2d 228 (Tex.Civ.App., Eastland, 1962, n.w.h.); Lubbock Bus Company v. Pearson, 277 S.W.2d 186 (Tex.Civ.App., Amarillo, 1955, wr. ref. n.r.e.); Wilborn v. State, 64 S.W. 1058 (Tex.Crim.App., 1901).

In Fidelity and Casualty Co. of New York v. Davis, supra, the Court held in part as follows:

'The defendant's medical witness did not recognize Spurling. It would not have been proper for plaintiff's attorney to read excerpts from the book and ask said witness if he agreed or disagreed with them. It would have been improper to discredit the medical witness' testimony in this manner under the rule announced in Bowles v. Bourdon. However, the question which the plaintiff's lawyer asked the medical witness before he was instructed by the medical witness to read from the book was entirely proper. The question did not reveal borrowed language or quotations from any authority. The record does not show from what source plaintiff's counsel received assistance and information in framing his question. The text book was not introduced as evidence nor considered as such at the time the question was asked. * * *'

In Lubbock Bus Company v. Pearson, supra, the trial court sustained appellee's objection to a question propounded by defense counsel upon the ground that it was evident that defense counsel was reading from some unknown medical book with which the doctor witness might not be familiar and which had not been recognized as authoritative, and that it would therefore be hearsay testimony. On appeal, appellant urged that the question was proper and that it was immaterial that he had read from a book in propounding the question. Although the Court of Civil Appeals found that reversible error was not presented, it held in part as follows:

'* * * We think appellant's contentions in this respect are sound. When appellant's counsel propounded the question, the language he used became his own, since the language used by him did not reveal any borrowed language or any quotation from any other authority. The language used by most of us we got from books or from some other source. Nevertheless, when we use the language in our own way without giving others credit for it, such language becomes our own language. It is our opinion that the question as propounded was a permissible one on cross examination and the trial court should have permitted Dr. Cross to have answered the question if he could. * * *' On the record before us we cannot distinguish the questions objected to by appellant (as allegedly being read in part from unrecognized texts) from those which asked in substance whether the doctor agreed with statements of alleged medical fact incorporated in the questions propounded by counsel for appellee, which ordinarily would be proper. Appellant's points one and two are overruled.

Appellant's third point reads as follows:

'THIRD POINT

'The trial court erred in sustaining Plaintiff's Motion in Limine No. III, which ruled that Defendant could not bring up the possibility of myelography as a diagnostic tool in connection with the determination of whether the Plaintiff had a probable ruptured intervertebral disc, and further erred on the same point in excluding from evidence the testimony of Dr. J. A. Garcia of Alice, a witness for the Plaintiff, wherein on cross-examination, upon bill of exception, Defendant's attorneys developed that a myelogram procedure would have been a useful diagnostic tool, and is a useful diagnostic tool in determining the existence of an intervertebral disc, which testimony was offered in evidence by Defendant, and excluded by the court in a continuation of its ruling Plaintiff's Motion in Limine No. III.'

The trial court sustained the motions in limine filed by appellee, reading in part as follows:

'III.

'Plaintiff has reason to believe that during the trial of this cause Defendant may attempt to interject the possibility of myelography as a diagnostic tool. Myelography involves a surgical procedure and is subject to the same limitations as other surgical...