Texas Employers' Ins. Ass'n v. Wells

• Decision Date: 01 December 1947
• Docket Number: No. 5828.,5828.
• Citation: 207 S.W.2d 693
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. WELLS.
• Court: Texas Court of Appeals

Page 693

207 S.W.2d 693

TEXAS EMPLOYERS' INS. ASS'N v. WELLS.

No. 5828.

Court of Civil Appeals of Texas. Amarillo.

December 1, 1947.

Rehearing Denied January 12, 1948.

Appeal from District Court, Yoakum County; Louis B. Reed, Judge.

Suit under the Workmen's Compensation Act by H. L. Wells to set aside an award of the Industrial Accident Board in favor of Texas Employers' Insurance Association. From the judgment, defendant appeals.

Affirmed.

Underwood, Wilson, Sutton, Heare & Boyce, of Amarillo, for appellant.

Scarborough, Yates, Scarborough & Black, of Abilene, for appellee.

LUMPKIN, Justice.

This is a workmen's compensation case. The appellee, H. L. Wells, was the employee. The appellant, Texas Employers' Insurance Association, was the compensation insurance carrier, and Mc's Well Servicing Company was the employer.

The accident complained of occurred on July 9, 1946. On that date the appellee was employed by Mc's Well Servicing Company. This company was operated by B. L. McFarland and was engaged in drilling and servicing oil wells. On the day of the accident the appellee was working on the Denver Producing and Refining Company's lease in Yoakum County, Texas, and while so engaged he was unexpectedly hurled against the cellar wall of an oil well by a master control valve. The appellee alleged that from the accident he sustained personal injuries which incapacitated him totally and permanently. As opposed to appellee's allegations, the appellant pleaded a general denial, partial and temporary incapacity, and claimed credit for five weeks' compensation paid the appellee.

The case was submitted to a jury which returned a verdict finding that the appellee had received an accidental personal injury, resulting in total incapacity for a period of five weeks and in permanent partial incapacity of 50 percent. Since the parties had stipulated that the appellee's average weekly wage prior to the accident was $60, the trial court, in accordance with the verdict, rendered judgment whereby the appellee should recover $20 per week from the appellant for a period of five weeks, beginning July 9, 1946, and $18 per week for 300 weeks, beginning August 13, 1946. From this judgment the appellant duly excepted and gave notice of appeal.

The appellant attacks the court's judgment in six points of error contending in points one and two that the court erred in admitting the testimony of Dr. William A. Snow of Abilene, Texas. At the request of appellee's attorney, Dr. Snow had examined the appellee on two occasions. During the first examination he made X-rays of various portions of the appellee's body and gave the appellee a complete physical examination. On this occasion Dr. Snow took a complete history from the appellee concerning the accident and the inconvenience and pain he had suffered since that time. The second examination occurred only a few days prior to the trial. On this occasion he examined the appellee but did not make any X-rays. However, on neither of the two occasions did Dr. Snow treat, or offer to treat, the appellee. At the trial Dr. Snow testified that as a result of the two examinations it was his opinion that the appellee was unable to perform hard manual labor; that any manual labor would cause the appellee pain and soreness in his back and hips to such an extent that he would not be able to continue working; that the soreness and pain were due to the injury; and that appellee's disability was total and permanent and had been so since the date of the accident. Dr. Snow pointed out that he used the history given him by the appellee to direct his attention to the site of the injury, but that his diagnosis was based solely on his own findings and that in making his diagnosis, he excluded from his mind the statements made by the appellee.

The appellant objected to this portion of Dr. Snow's testimony citing the settled rule that a doctor who makes an examination solely for the purpose of testifying in court cannot base his opinion upon subjective symptoms. Texas Employers' Ins. Ass'n v. Wallace, Tex.Civ.App., 70 S.W.2d 832. In this case Dr. Snow was positive that the subjective symptoms, as related by the appellee in his history, played no part in arriving at his diagnosis — that his opinion concerning the appellee's condition, including whether he suffered pain, was the result of studying the X-rays and that the diagnosis was based on objective symptoms alone. In view of Dr. Snow's statements we believe the court did not err in admitting this testimony. Our courts have held that where the testimony of the physician is not based to any appreciable extent upon subjective or hearsay symptoms, as related to him by appellee, the doctor's testimony is admissible. Traders & General Ins. Co. v. Milliken, Tex.Civ.App., 110 S.W.2d 108; Texas Employers Ins. Ass'n v. Clack, Tex.Civ.App., 112 S.W.2d 526, affirmed, 134 Tex. 151, 132 S.W.2d. 399; Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332, Comm. of Appeals; Stayton et al v. Contreras, Tex. Civ.App., 150 S.W.2d 342, dismissed judgment correct; Texas Employers Ins. Ass'n v. Morgan et al., Tex.Civ.App., 187 S.W.2d 603, writ refused w.m.

The appellant's next contention grows out of the manner in which the jury answered two of the special issues. By its answers to Special Issues 5 and 7, the jury found the appellee permanently incapacitated, both totally and partially. The court discovered the conflict and instructed the jury in the following supplemental charge: "You are instructed that your answer to Special Issue 5 and your answer to Special Issue 7 are in conflict with one another and you are instructed to retire and reconsider your answer to two such special issues, 5 and 7." It will be noticed that these instructions do not indicate or suggest to the jury how the issues should be answered. However, the appellant complains of this action on the part of the trial court, saying the instructions limited the jury to Special Issues 5 and 7 and deprives it of the right to exercise its discretion in changing the answers to any of the issues in which conflicts exist. In order to understand this contention, we must briefly examine several of the special issues submitted to the jury. A study of the record reveals that after the case was submitted and after a period of deliberation, the jury returned its verdict containing the answers to the special issues. Among these special issues and answers were the following:

Special Issue 4 inquired whether the appellee sustained total incapacity for any length of time subsequent to July 9, 1946. The jury answered "yes."

Special Issue 5 asked if such total incapacity was permanent or temporary. The jury wrote "permanent."

Special Issue 6 asked the jury to determine the duration of the total incapacity. To this issue the jury made no finding.

Special Issue 7 inquired whether appellee sustained any partial incapacity. To this question the jury answered "yes."

Special Issue 8 asked if such partial incapacity was permanent or temporary. The jury found "permanent."

Special Issue 10 asked the jury to set the percentage of such partial incapacity. In answer to this special issue the jury wrote "50 percent."

The record further shows that after the jury's verdict was returned, the appellee contended that two of the jury's answers were in conflict and asked that the jury be retired to reconcile the conflict. The court granted the appellee's request and submitted to the jury the written instruction shown above. According to the appellant, this instruction limited the conflict to Special Issues 5 and 7. The appellant argued that the conflict should not be limited to 5 and 7 but should be extended to Special Issues 4, 5, 7, and 8; and that any instruction which did not include all of the conflicts might operate in the direction of inducing the jury to change the answers in a manner most favorable to the appellee, and that for this reason the court's instruction was upon the weight of the evidence. The court overruled the appellant's objection, the jury retired with the court's instruction and after a period of deliberation returned with the verdict upon which the court rendered judgment. In its answers to the special issues the jury had changed the finding of Special Issue 5 from "permanent" to "temporary" and had given the answer of "five weeks" to Special Issue 6. No change was made in the answer originally written to Special Issue 7.

We cannot agree in appellant's contention that the conflict extended to Special Issues 4, 5, 7 and 8. There was a conflict between Special Issues 5 and 7, since obviously the appellee could not be suffering a permanent total incapacity and a partial incapacity at one and the same time. In our opinion the trial court was acting in accordance with Rule 295, Texas Rules of Civil Procedure, when in writing he called the conflict to the jury's attention. As a matter of fact, in the language submitted, Special Issue 4 does not conflict with Special Issues 7 and 8. Special Issue asked whether the appellee suffered total...