Texas General Indemnity Company v. Ellis

• Decision Date: 16 November 1967
• Docket Number: No. 309,309
• Citation: 421 S.W.2d 467
• Court: Texas Court of Appeals
• Parties: TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. J. C. ELLIS, Jr., Appellee. . Tyler

Page 467

421 S.W.2d 467

TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. J. C. ELLIS, Jr., Appellee.

No. 309.

Court of Civil Appeals of Texas.

Tyler.

Nov. 16, 1967.

Saunders & Caldwell, Gene W. Caldwell, Tyler, for appellant.

Richard W. Fairchild, Nacogdoches, for appellee.

DUNAGAN, Chief Justice.

This is a workmen's compensation suit. The case was tried before a jury. Upon the findings of the jury, the trial court entered a judgment for total and permanent disability for the appellee in the sum of $13,703.39. Appellant duly perfected its appeal from such judgment to this court.

Appellant first contends that: 'The trial court erred in failing to grant Appellant's Motion for a Mistrial, made after improper argument of counsel for the Appellee.' We overrule this contention.

The argument of which appellant complains, and on which it filed its motion for new trial, was as follows: 'And then his wife out there had been sick for two years from childbirth--a young woman and 7 little tots, that he loves, just like you love yours, and he has got the same God given right to love them--and not have paid Doctors and paid lawyers to come in here and--'.

At this point, counsel for appellee was interrupted and the sentence was not completed. Counsel for appellant objected on the ground that due to certain stipulations, such argument was improper and requested the court to instruct the jury to disregard it. The court sustained the objection and instructed the jury to 'disregard the last argument of Counsel about the financial circumstances of the Plaintiff and his family.' Counsel for appellee then pointed out that he had said nothing about the financial circumstances of plaintiff (appellee) and his family, but had said that he had the right to love his family just as the jury loved theirs; and further stated that if he had said anything about finances, he apologized and withdrew it, though he felt he had a right to discuss that under the circumstances of this case, 'because that's why he is working.'

Counsel for appellant then moved for mistrial for the reason that the argument was so prejudicial that an instruction would not remove it from the jury's mind.

Immediately before the argument objected to and quoted above, counsel for appellee had argued that the defense was that Ellis had been working and therefore was able to work, that he had no income, that the appellant knew it owed him, and if it had paid him, he wouldn't have had to work.

We do not consider the argument complained of to be a reference to the financial circumstances of appellee and his family. Evidence was admitted without objection that Ellis was 28 years old and had a wife who had been sick from childbirth for about two years and that he and his wife had seven children. Under the record in this case, we do not view the argument as being improper.

However, if it should be considered that the argument was a reference to the financial circumstances of appellee and his family, it still was not improper. As counsel for appellee pointed out at the time, the defense was that because Ellis had done some work since his injury, he was therefore able to work. Ellis had testified without objection that while he did some work after his injury, he was not able to work without suffering, that working or trying to work aggravated his pain. In supporting his wife and children, he had to work. Since appellee had the right to show that he had worked since the injury under the whip of financial necessity, to avoid the inference that he would not have worked if he had not been physically able to do so (Muro v. Houston Fire And Casualty Insurance Co., 310 S.W.2d 420, Tex.Civ.App., San Antonio, 1958, writ ref., n.r.e. and Bituminous Fire & Marine Insurance Co. v . Jones, 398 S.W.2d 577, 580, Tex.Civ.App., Tyler, 1966, writ ref., n.r.e.), his counsel had the right to argue, on the basis of the evidence admitted without objection, that appellee had worked since his injury, not because he was able to do so, but because he had to work to support his wife and seven children, whom he loved.

In any event, in the light of the evidence before the jury without objection, the action of the trial court in promptly instructing the jury not to consider the argument objected to, and counsel for appellee withdrawing any reference to the financial circumstances of appellee, if any were contained therein, the argument was not of such nature as was reasonably calculated to cause, nor did it probably cause, the rendition of an improper verdict and judgment. Consolidated Underwriters v. Whittaker, 413 S.W.2d 709, 717, 718 (Tex.Civ.App., Tyler, 1967, writ ref., n.r.e.); Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, 550 (1959); and Royal v . Cameron, 382 S.W.2d 335, 343 (Tex.Civ.App., Tyler, 1964, writ ref., n.r.e.).

Next, appellant contends that the court erred in permitting appellee's counsel to question its witness, Dr. Colquitt, about future medical treatment of the appellee and in failing to grant appellant's motion for mistrial pursuant to the court refusing to allow it to go into the beneficial effects of surgery before the jury.

On re-direct examination, testimony of Dr. Colquitt was elicited, without objection, to the effect that in the future appellee would need medical attention, medicines, and treatment. No inquiry was made as to what treatment would be required.

Later in the trial, after the court had refused to allow appellant to offer before the jury evidence as to the possible beneficial effects of surgery, appellant moved the court to instruct the jury to disregard the testimony as to the necessity for future medical attention as it was beyond the scope of the pleadings and not proper to be considered by the jury in arriving at its verdict. Counsel for appellee agreed that such instruction should be given. Appellant then moved for mistrial on the ground that such instruction could not remove the prejudice. The trial court denied the motion for mistrial but instructed the jury to disregard the testimony as to the necessity for future medical expenses.

No issue as to future medical was submitted to the jury, nor was recovery for future medical sought in the pleadings. But, since Dr. Colquitt had testified that appellee's physical condition resulting from the injury had required medical attention to the time of the trial, that it had disabled him to work, that it was permanent, and that it would continue to disable him to work in the future, the testimony as to the continuing need for medical attention in the future was admissible, not as a basis of recovery for expenditures therefor, but as a circumstance tending to show that appellee's physical condition, as it had existed to the time of trial, would remain unchanged in the future.

In any event, however, the action of the trial court in instructing the jury not to consider the testimony relative to the need for future medical attention effectively destroyed any likelihood of injury to the appellant, for the testimony was not of such nature that the likelihood of harm could not be removed by instruction not to consider it. Moreover, it added nothing of substantial significance to the testimony of Dr. Colquitt that appellee had been at the time of trial and would in the future continue to be disabled to work as the result of the physical condition caused by the injury. Appellate Procedure in Texas, Chapter 17, Harmless Error, Sec. 17.12(3).

Under the record before us, we do not think the court committed error in excluding testimony offered by appellant as to the beneficial effects of surgery. No reason appears, and appellant gives none, why the offering of testimony as to the necessity of future medical care should operate as a waiver of the general rule regarding the admissibility of evidence as to the beneficial effects of surgery. The reason for the rule excluding such evidence (Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, 524, 525, 1960) continues to exist in the presence of evidence as to the continuing need for medical attention . 63 Tex.Jur.2d 468, and cases cited.

Moreover, if any waiver was effected by the introduction of the evidence pertaining to the necessity for future medical attentions, the waiver no longer existed after the trial court, on motion of appellant, withdrew the evidence and instructed the jury not to consider it. Appellant's contention is overruled.

The appellant also contends that the court erred in overruling appellant's request that certain exhibits be sent into the jury room .

While the jury was deliberating its verdict, appellant requested the court to send into the jury room Defendant's Exhibits Nos. 1 and 2, which the court refused.

Defendant's Exhibits Nos. 1 and 2 are claims for hospital and medical benefits under a group policy of insurance carried by Tyler Pipe & Foundry on its employees. On the face of these instruments appears: 'Statement of Insured' and the 'Assignment.' Each bears the signature 'J. C. Ellis, Jr.' Defendant's Exhibit No. 1 is dated December 7, 1964. The 'Statement of Insured', as reflected in this exhibit, describes the illness as 'fever--chills--sore throat;' Defendant's Exhibit No. 2, which is undated, describes the illness as 'tonsillitis'.

On the back of each instrument is an 'Attending Physician's Statement', which shows to have been signed by E. R. Moser, M.D. Each of these statements reflects the nature of the illness to be acute tonsillitis, not arising out of the patient's (appellee) employment. Each such statement reflects the patient first consulted the doctor for the condition on December 3, 1964.

Dr. E. R. Moser was not called to testify upon the trial of this case nor does the record reflect any attempt to establish that Dr. Moser in fact signed the statement.

Appellee identified the signatures on the face of each exhibit under 'Statement of Insured' as being his signatures, but stated that he...