Slaughter v. Abilene State School

• Decision Date: 26 October 1977
• Docket Number: No. B-6567,B-6567
• Citation: 561 S.W.2d 789
• Parties: Johnie L. SLAUGHTER, Petitioner, v. ABILENE STATE SCHOOL et al., Respondents.
• Court: Texas Supreme Court

Page 789

561 S.W.2d 789

Johnie L. SLAUGHTER, Petitioner,

v. ABILENE STATE SCHOOL et al., Respondents.

No. B-6567.

Supreme Court of Texas.

Oct. 26, 1977.

Robinson, Hanna, Chappell, Burke & Moore, W. L. Burke, Jr., John W. Weeks, William S. Perry, Abilene, for petitioner.

John L. Hill, Atty. Gen., David M. Kendall, Jr. and Jack Sparks, Asst. Attys. Gen., Austin, for respondents.

DENTON, Justice.

This is a suit for personal injuries under the Texas Tort Claims Act. ¹ The trial court entered judgment on the jury verdict for the plaintiff. The court of civil appeals reversed and remanded. 546 S.W.2d 106. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The petitioner, Johnie L. Slaughter, while an employee of the Abilene State School, was injured when another employee of the Respondent School backed a tractor over Slaughter and pinned him between the tractor wheel, the ground and a building. It is undisputed that he received severe injuries as a result of the incident.

Slaughter contends that the court of civil appeals was in error in holding the opinion testimony of Doctor Krege was inadmissible. Respondents complain of certain testimony of Doctor Krege in behalf of the petitioner because the doctor "examined the plaintiff solely for the purpose of testifying, and prescribed no treatment" and his opinion was based in part on history given by petitioner and upon subjective symptoms. Petitioner introduced the deposition of Doctor Krege, an orthopedic surgeon of the United States Air Force stationed at Lackland Air Force Base Hospital. Petitioner had been seen by several doctors and had started going to the hospital at Lackland since he was a retired military veteran. He saw Doctor Freeman, who was also an Air Force orthopedic surgeon, at Lackland Air Force Base Hospital who prescribed a back brace for Slaughter. When Slaughter returned to Lackland Hospital, Doctor Freeman had been transferred and Doctor Krege was assigned to examine Slaughter. It is this testimony of Doctor Krege, based on this one visit, that forms the basis of the admissibility of his testimony.

Doctor Krege testified he saw Slaughter on one occasion on September 26, 1975; that he obtained a complete history from Slaughter which included a statement as to how the accident occurred and his complaints. He then gave Slaughter a physical examination which included X-rays of the affected areas of the body. Based upon history of the case given by Slaughter, the subjective symptoms, together with the objective findings obtained from the physical examinations and X-rays, Dr. Krege rendered an opinion as to his physical condition and prognosis. On cross-examination Dr. Krege testified that he had seen Slaughter only on the one occasion and "at that time" he did not prescribe any treatment; that he examined Slaughter "solely for the purpose of giving your opinion as to his condition."

In ruling that Doctor Krege's testimony is inadmissible the court of civil appeals primarily relied upon Pacific Employers Insurance Company v. Gibson, 419 S.W.2d 239 (Tex.Civ.App.1967, no writ); Texas Employers' Insurance Association v. Wallace, 70 S.W.2d 832 (Tex.Civ.App.1934, no writ); Gaines v. Stewart, 57 S.W.2d 207 (Tex.Civ.App.1933, no writ). These cases hold that where the doctor who examines the patient only for the purpose of making a report and testifying, if necessary, he cannot base his opinion as to the condition of the patient in part on the history of the case as related by the patient. It must be based on an examination and study of objective symptoms and X-rays. See also Goodrich v. Tinker, 437 S.W.2d 882 (Tex.Civ.App.1969, writ ref'd n. r. e.); Texas Employers' Insurance Association v. Wells, 207 S.W.2d 693 (Tex.Civ.App.1947, writ ref'd n. r. e.); Texas Employers' Insurance Association v. Morgan, 187 S.W.2d 603 (Tex.Civ.App.1945, ref'd w. o. m.); Southern Underwriters v. Blair, 144 S.W.2d 641 (Tex.Civ.App.1940, no writ). We are of the opinion this rule places an unfair limitation upon a reasonable practice of those preparing their case for trial, namely that of securing qualified physicians and surgeons to make an examination for the purpose of later aiding the court and jury to better understand the claimant's physical condition. We agree with leading commentators ² that the better reasoned authorities admit testimony based, in part, upon reports of others but which the expert customarily relies upon in the practice of his profession.

The record here reveals that Doctor Krege's testimony concerning Slaughter's physical condition and prognosis was based on three things: the history of the case given by the patient, a physical examination and X-rays. The doctor testified the patient's subjective complaints were consistent with his objective findings. Under these circumstances, we think the trial court was correct in admitting the opinion testimony of Doctor Krege because it was clearly not based wholly upon hearsay. Texas courts have followed the general rule that where it appears a witness' testimony is predicated both upon personal knowledge and upon hearsay, his testimony is admissible. Combined Insurance Company of America v. Kennedy, 495 S.W.2d 306 (Tex.Civ.App.1973, writ ref'd n. r. e.); Aetna Casualty & Surety Company v. Scruggs, 413 S.W.2d 416 (Tex.Civ.App.1967, no writ); Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App.1964, writ ref'd n. r. e.); Texas Employers' Insurance Association v. Rogers, 368 S.W.2d 21 (Tex.Civ.App.1963, writ ref'd n. r. e.). We therefore hold that the testimony of Doctor Krege, even though not a treating doctor, which was based upon the case history, physical examination and X-rays, was admissible. Those cases holding to the contrary are disapproved.

Respondents Abilene State School and Texas Department of Mental Health and Mental Retardation complain of the court of civil appeals holding that the 1953 John Deere tractor in question was a motor vehicle under the terms of section 19A of the Texas Tort Claims Act. Section 19A provides:

The provisions of this Act shall not apply to school...