Texas Employers' Ins. Ass'n v. Nixon

• Decision Date: 22 October 1959
• Docket Number: No. 13435,13435
• Citation: 328 S.W.2d 809
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. B. F. NIXON, Appellee.
• Court: Texas Court of Appeals

Page 809

328 S.W.2d 809

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. B. F. NIXON, Appellee.

No. 13435.

Court of Civil Appeals of Texas, Houston.

Oct. 22, 1959.

Rehearing Denied Nov. 19, 1959.

Fulbright, Crooker, Freeman, Bates & Jaworski, Sam H. Hood, Jr., Richard A. Hall, Houston, for appellant.

Wellborn & Britt, Olin G. Wellborn, Jr., Charles W. Britt, Alvin, for appellee.

WERLEIN, Justice.

This is an appeal in a workman's compensation case from a judgment on a jury verdict, for $35 per week for 91 weeks and $25.44 per week for 297 weeks, appellee having previously been paid compensation benefits for 13 weeks at the rate of $35 per week.

Appellant asserts in its first two points that the Court erred in permitting appellee's counsel to read into evidence before the jury excerpts from a medical textbook, and to cross-examine appellant's expert medical witness by reading from a medical book, which he did not recognize as authoritative.

Appellee's witness, Dr. Ziontz, was asked by appellee whether he was familiar with the book entitled Lesions of The Lumbar Intervertebral Disc, by Dr. R. Glenn Spurling, and several other texts not pertinent hereto. He answered that the book was a 'well recognized and well thought of authority in that field.' Thereafter, appellee's counsel, over appellant's timely objections, was permitted on cross-examination of Dr. Eggers, to read excerpts from Spurling's book for the purpose, as appellee's counsel stated before the jury, of showing that other reputable doctors and textbooks disagreed with Dr. Eggers' views with respect to certain indications and symptoms of a ruptured disc. Dr. Eggers testified that where there was a ruptured disc on one side the shifting of pain to the other side without leaving pain on the original side indicated there was no ruptured disc; that the pain would not go away entirely. Counsel for appellee then read from said textbook, 'As a rule, the pain is unalateral and is constant in the extremity. It is only occasionally bilateral. Very occasionally, it may shift from one limb to the other during the first or successive episodes.' When asked whether he agreed with such statement, Dr. Eggers testified, 'I disagree. I think it always returns to the original side.'

Dr. Eggers, after testifying that pain in the back was not necessarily the first symptom of a lumbar disc, was further questioned whether he agreed or disagreed with the Spurling book which stated, 'With very infrequent exceptions the first symptom of a ruptured lumbar disc is pain in the back.' He answered, 'I don't agree with that.' He was then asked whether he agreed that a ruptured intervertebral disc is one of the commonest causes of low back pain and whether one did or did not have radiation of pain down the leg. He answered, 'I don't agree with that.' Appellee's counsel then read from Spurlings book, 'What all of these observations amount to is that a rupture of the intervertebral disc is probably the commonest cause of low lumbar pain with or without sciatic radiation.' The doctor, when asked whether he agreed or disagreed with such statement from Dr. Spurling's book, answered, 'I don't agree with that.'

It is apparent from the record that Dr. Eggers at no time recognized Dr. Spurlings book as authoritative. When interrogated by appellee's counsel concerning it and being advised that it was published in 1953, he stated that the book was probably two years in preparation, making it seven or eight years old, and that in his opinion the findings and progress made and understanding of the intervertebral disc have developed so much since 1953 that he wouldn't accept it or any textbook as being absolutely correct because they would be behind the times. When asked whether he was willing to say that the book in question was not a well-recognized authoritative text on the subject, he merely replied, 'No, I did not say that.' This was not the equivalent of a recognition of the text as suthoritative.

It is well established that excerpts from textbooks are inadmissible as direct evidence of the truth of the matters therein asserted. Such evidence would be hearsay. St. Louis, A. & T. Ry. Co. v. Jones, Tex.1890, 14 S.W. 309; Hicks v. Brown, Tex.Civ.App.1939, 128 S.W.2d 884, affirmed in part and reversed in part, 136 Tex. 399, 151 S.W.2d 790; General Life Insurance Co. v. Potter, Tex.Civ.App.1939, 124 S.W.2d 409, no writ history.

Apparently, it is appellee's contention that a medical expert may be cross-examined by reading excerpts from a textbook which the doctor had not recognized as authoritative if some other doctor has testified that the book is authoritative. Appellee relies largely upon William Cameron Co., Inc. v. Downing, Tex.Civ.App., 147 S.W.2d 963, 968, no writ history, and Hicks v. Brown, supra. In the Downing case the court used this language: 'We do not mean to hold that it is impossible to prove the authenticity of such a book. It occurs to us that if proof be made by any competent doctor that same is used and recognized by the medical profession, that this is sufficient.' It is not shown in the Downing case whether or not the doctor being cross-examined recognized the book in question as authoritative. If he did, we think the foregoing statement by the court was dictum.

In Hicks v. Brown, supra, the doctor being questioned stated that the medical work in question should be an entirely good authority, being by the Professor of Clinical Medicine of the Jefferson Medical College and that it should be an authoritative statement.

We are not unaware of the fact that there is considerable conflict in the authorities and some confusion as to when and under what circumstances a medical book or text can be used in cross-examining a witness. We think the better ruld 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. The purpose of such cross-examination is to impeach the medical witness--to discredit his testimony or test its weight. If the expert medical witness has specifically cited as supporting his opinion certain books or treatises, they may be used in cross-examining him by reading excerpts therefrom inconsistent with the expert's testimony. Also he may be examined upon the basis of treatises which he himself has recognized as having authoritative status, whether or not he has relied thereon in forming his opinion. This, it seems, is the orthodox rule, and the one which we believe is supported by the great weight of authority. Wigmore on Evidence (third edition), 1940, Vol. 6, Sec. 1700, p. 18, states:

'It has been in some Courts held that counsel on cross-examination, may, for discrediting purposes, read a passage from a professional treatise as opposing the statement of an expert on the stand, or ask whether a contradictory opinion has been laid down by others. But this is generally repudiated.

'There is here, however, a legitimate use, i. e. where a witness has been allowed to refer to a specific treatise (or to treatises generally) as corroborating him, the treatise may be read to show that it does not contain such corroboration, on the principle (ante, Sec. 1000) of discrediting a witness by showing misstatements on a material point. This orthodox purpose, as expressly distinguished from the indirect introduction of books on their own credit (as above noted), is fully recognized:

'1882, Graves, C. J., in Pinney v. Cahill, 48 Mich. 584, 587, 12 N.W. 862: 'It was not improper to resort to the book, not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to see that the book did not contain what he had ascribed to it."

We think the Supreme Court of Texas, in Bowles v. Bourdon, Tex.Civ.App.1949, 219 S.W.2d 779, 783, recognized this orthodox rule in stating:

'When a doctor testifies as an expert relative to injuries or diseases he may be asked to identify a given work as a standard authority on the subject involved; and if he so recognizes, it, excerpts therefrom may be read not as original evidence but solely to discredit his testimony or to test its weight. Gulf, C. & S. F. Ry. Co v. Farmer, 102 Tex. 235, 115 S.W. 260; Texas & P. Ry. Co. v. Hancock, Tex.Civ.App., 59 S.W.2d 313 (er. ref.).'

Chamberlayne, in his The Modern Law of Evidence, Sec. 2537, p. 3426, makes the following statement:

'Apart from statutory provision, extracts from standard treatises cannot be read to an expert for the sole and direct purpose of contradicting him. There is, however, a valid and well established exception to this general rule. Should the expert, in assigning the grounds for his judgment, state that he bases it, to some material extent, upon the statements of certain textbooks, he may be asked to give in detail who these authorities are, although he is not, necessarily, under any legal obligation to furnish the information. Should the witness conclude, however, to answer, and it appear, upon examination, that these chosen authorities do not sustain the expert in his position, a fortiori should they take an antagonistic attitude in the matter, these facts may be shown on rebuttal to...