St. Louis Southwestern Ry. Co. v. Demsey

• Decision Date: 28 October 1905
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. DEMSEY.
• Court: Texas Court of Appeals

89 S.W. 786

ST. LOUIS SOUTHWESTERN RY. CO. v. DEMSEY.

Court of Civil Appeals of Texas.

October 28, 1905.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by J. H. Demsey against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

E. B. Perkins and Templeton, Crosby & Dinsmore, for appellant.

TALBOT, J.

J. H. Demsey brought this suit to recover of appellant damages alleged to have been sustained by him on account of the wreck of a hand car on which he was riding, while engaged in the employ of the defendant as a section hand. It was alleged that the wreck was occasioned by reason of a lining block falling off the front end of the car while the same was being propelled along the track; that the foreman of the section crew caused the block to be put on the front end of the car, when it should have been placed on the back end of the car, where, if it fell off, it would not wreck the car. The defendant pleaded the general issue, contributory negligence, assumed risk, and specially that the plaintiff for a valuable consideration had released his claim for damages on account of the said accident. The plaintiff, by supplemental petition, denied under oath having executed any such release, and pleaded specially that, if he did execute the same, he did so without knowing what it was, and supposing it to be something else, and that he was induced to do so by reason of fraudulent representations made to him by the agents of the defendant. The case was tried before a jury, and on October 22, 1904, the plaintiff recovered judgment for $1,750. The defendant's motions for new trial were overruled, and he appealed.

W. T. Edgar, a witness of plaintiff, was permitted to testify over defendant's objection that, from what he saw and observed of plaintiff while plaintiff was working for him, his physical condition was such he could not work at that time. This testimony was objected to on the ground that the same was the opinion of a nonexpert witness, concerning a matter about which he was not competent to speak. The objection was well taken, and should have been sustained. The answer was but the conclusion of the witness, and he had not qualified as an expert; nor was it made to appear that the testimony was "embraced within any of the exceptions to the rule which excludes mere opinions of witnesses." It is well settled that "the facts upon which the conclusion is based must be established to authorize the opinion of a nonexpert witness." The witness not being qualified to speak as expert, and failing to state the facts upon which his conclusion was predicated, the testimony objected to was not competent. Clardy v. Callicoate, 24 Tex. 172; Railway Co. v. Scott (Tex. Civ. App.) 20 S. W. 725; Wells-Fargo Express Co. v. Boyle et al., 87 S. W. 164, 12 Tex. Ct. Rep. 994.

Appellant's second assignment of error complains of the admission, over its objection, of the testimony of Dr. J. M. Wolfe, that the plaintiff told him, he (plaintiff) could not hear a watch tick when the same was held more than five or six inches from his ear. The objections urged to this testimony were and are that the same was hearsay and self-serving. The proposition propounded under this assignment is "that the mere declarations of the plaintiff [as detailed by the witness] 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, was not admissible." The proposition is a correct statement of the law (Railway Co. v. Johnson, 95 Tex. 409, 67 S. W. 768), but the bill of exceptions reserved to the ruling of the court does not show that the declarations complained of were made on such an occasion and for the purpose suggested by the proposition, and an adverse ruling to appellant's contention is not presented for review. The bill is sufficient, perhaps, to show, and the proposition admits, that the witness was an expert. As such his statement of the declarations complained of was admissible, unless made on an occasion, and for the purpose indicated in the proposition. The bill does not show they were so made, and hence it does not appear that the ruling of the court below involved the question of law contained in the proposition. It may be true, as shown by the statement contained in appellant's brief under this assignment, that the witness testified on cross-examination that his examination of plaintiff was made with a view of testifying on this trial, etc., but this court is not required to look to the evidence contained in the statement of facts in aid of a bill of exceptions. As the case will be reversed upon other grounds, it is proper to say that, if upon another trial it should be made to appear that the witness Dr. Wolfe tested plaintiff's hearing by holding his watch a certain distance from his ear and asking him if he heard it tick, and that the "occasion was prepared by plaintiff for the sole purpose of furnishing said witness, as an expert, with information on which to base an opinion favorable to plaintiff," such testimony should be excluded. The second paragraph of the court's charge is so framed, doubtless through inadvertence, that we think it is probably subject to appellant's criticism; especially do we regard it as calculated to confuse and mislead the jury. This imperfection, however, is not likely to occur again.

Error is assigned to the refusal of the court to...