Texas Employers' Ins. Ass'n v. Wallace

• Decision Date: 20 April 1934
• Docket Number: No. 1257.,1257.
• Citation: 70 S.W.2d 832
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. WALLACE.
• Court: Texas Court of Appeals

Page 832

70 S.W.2d 832

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

No. 1257.

Court of Civil Appeals of Texas. Eastland.

April 20, 1934.

Rehearing Denied May 11, 1934.

Error from District Court, Taylor County; M. S. Long, Judge.

Suit by the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board made in favor of L. L. Wallace, wherein defendant filed a cross-action. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

Lawther, Cox & Cramer and Wm. M. Cramer, all of Dallas, for plaintiff in error.

O. E. Nelson and Luther Hoffman, both of Wichita Falls, for defendant in error.

LESLIE, Justice.

This suit was brought by the plaintiff in error, Texas Employers' Insurance Association, to set aside an award of the Industrial Accident Board made in favor of L. L. Wallace. Wallace answered by general denial, and set up the usual cross-action seeking recovery for total, permanent disability and lump-sum payment. The case was tried before the court and jury, and upon the jury's answers to special issues submitted, the trial court rendered a judgment in favor of Wallace for the sum of $6,104.16. From this judgment the association appeals, predicating error upon five assignments of error and seven propositions thereunder.

The injured employee was a rig builder. There was no evidence that he had worked in the character of employment in which he was engaged at the time of his injury for substantially the whole of a year immediately preceding the injury. In response to issues, the jury found from a preponderance of the evidence that employees working as rig builders worked substantially the whole of the year immediately preceding July 8, 1931, in Shackelford county, or in neighboring places, and that the average daily wage of such employees was $12 per day. These findings bring the case definitely within first subdivision 2, § 1, art. 8309, R. S. 1925, for the ascertainment of the employee's average annual wages. This is true, although the jury further found, in response to issue 18, that a daily wage which would be just and fair both to the plaintiff and defendant was $14 per day when working as a foreman, and $12 per day when working as a rig builder.

There is not an assignment or proposition in the plaintiff in error's brief raising the question of no evidence or the sufficiency of the evidence to support the verdict of the jury in response to issues 16 and 17, and those findings fix the amount of the plaintiff's recovery, if any, in this case. Neither assignments 1 and 2, nor propositions 1, 2, 3, 4, and 5, based thereon, raise such questions, and the record does not in other respects raise such points as are sought to be presented by said assignments and propositions. They, therefore, present abstract propositions which we are not called on to consider.

Proposition 6, based on assignment of error No. 3, presents the contention that since Dr. John H. Fletcher was called by the defendant in error Wallace to examine him solely with a view to giving testimony on the trial of the case concerning his injuries, and was offered as a witness by said Wallace, it was error for the trial court to permit said doctor to testify, over the objections of the insurance association, that, in his opinion, the injured employee was totally and permanently incapacitated to perform labor as a workman, basing such answer in part upon the history of the case as he obtained it from Wallace himself. This opinion testimony, in so far as based on the information or history given by Wallace, was objected to on the ground that it was hearsay and based in part, at least, upon hearsay. The doctor testified in response to Wallace's attorney:

"Q. At my request, did you make an examination of Mr. L. L. Wallace, this gentleman here? A. Yes, sir. * * *

"Q. Did you discuss with the man the nature of his injuries? A. Yes, sir.

"Q. Did you get a history of what had happened to him from him at the same time? A. Yes, sir.

"Q. Did you discuss his subjective symptoms at the time? A. Yes, sir.

"Q. In order that the jury may understand, subjective symptoms are something you can not see but have to get from the patient? A. Subjective symptoms are something the patient tells you. Objective symptoms are something you can see. * * *

"Q. And the opinion you have formed was from your discussion with Wallace, and the X-ray, reports, etc., which were furnished to you by Mr. Wallace, Dr. Kessler's original report of the accident, and your report from Dr. Glover as to what the X-ray showed? A. Yes, sir. * * *

"Q. From the history that you got from Mr. Wallace himself, from the X-rays which were taken and which you read, and from your examination of him, I wish you would tell the jury whether or not at this time you are of the opinion that he is totally incapacitated to perform labor as a workman? A. That's my opinion, that he is totally incapacitated.

"Q. And you are of the...