Traders & General Ins. Co. v. Wheeler

• Decision Date: 21 July 1954
• Docket Number: No. 5035,5035
• Citation: 271 S.W.2d 679
• Parties: TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Eli WHEELER, Appellee.
• Court: Texas Court of Appeals

Page 679

271 S.W.2d 679

TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Eli WHEELER, Appellee.

No. 5035.

Court of Civil Appeals of Texas, El Paso.

July 21, 1954.

Rehearing Denied Sept. 22, 1954.

McDonald & Shafer, Odessa, Dan P. Johnston, Dallas, on brief, for appellant.

Favor & Barnes, Jasper, for appellee.

HAMILTON, Chief Justice.

This is a workmen's compensation case. Eli Wheeler, appellee here and plaintiff below, sued Traders & General Insurance Company, appellant here and defendant below, in the 83rd District Court of Upton County, Texas, for accidental personal injuries received by him on or about June 1, 1952, while employed by the Wilshire Oil Company, Inc., alleging total and permanent disability and seeking compensation at the rate of $25.00 per week for 401 weeks, in a lump sum. Trial was to a jury on special issues, resulting in a verdict for plaintiff for total and permanent disability to be calculated on a wage rate of $20 per day. Based upon the jury verdict, judgment was entered for plaintiff in the sum of $9,117.25, with interest from October 17, 1953. The case is now before this court on appeal.

In appellant's first point it complains that the trial court erred in permitting plaintiff and his wife to testify over appellant's timely objection that defendant's medical witness had told plaintiff and his wife that the plaintiff had sustained a broken bone in his spine. It appears from the record that some two months after plaintiff had sustained the injury while working in Upton County, he went back to his home town, Jasper, Texas, and went to see Dr. A. J. Richardson, Jr., whose father had previously been the family doctor for plaintiff's family. The doctor examined the plaintiff; took some X-ray pictures of his back. Plaintiff testified that he went to the doctor's office for the purpose of receiving treatment. The doctor, however, did not give any treatment to plaintiff. Shortly prior to the trial of this case plaintiff was sent by appellant to said doctor for re-examination for the purpose of testifying in this case. Said doctor's testimony was taken by deposition, which deposition was used at the trial. The doctor testified substantially as a result of each of the examinations he found no evidence of an injury to plaintiff's back that would be disabling, and in fact found no evidence of any injury to plaintiff's back. Appellant introduced evidence of Dr. Cooper, who had examined plaintiff and treated him at the time of the injury. Dr. Cooper's testimony was substantially that of Dr. Richardson. Appellees put on Dr. J. J. McGrath, whose evidence was sharply in conflict with that of Dr. Richardson and Dr. Cooper. After defendant had rested plaintiff was called back to the stand by plaintiff's counsel, and over the objection of appellant was asked the question, after referring to his first examination by Dr. Richardson:

'What did Dr. A. J. Richardson, Jr., tell you was the trouble with you? A. He told me that I had a little chip on the vertebra going into the spine, connecting to the spine or something-I don't know just his medical terms for it.'

Likewise, plaintiff's wife, who testified that she was present on said first examination, over the objection of appellant was asked the question:

'What, if anything, did Dr. Richardson tell your husband was wrong with him as revealed by the X-ray films that were taken? What did he say? A. He said there was a cracked place on the left wing-tip of the spine.'

This testimony was offered as rebuttal to Dr. Richardson's testimony. No attempt was made to lay a predicate for the impeachment of Dr. Richardson and such testimony was not offered as an impeachment of his testimony. We think such testimony is plainly hearsay and is inadmissable. It does not come under any of the exceptions of the hearsay rule. Appellee contends that since appellee went to the doctor for the purpose of receiving treatment that he was the treating doctor, and that statements of the treating doctor while treating a patient is an exception of the hearsay rule. The two cases relied upon by appellee are Texas Employers' Insurance Association v. Knouff, Tex.Civ.App., 297 S.W. 790, reversed on other grounds, Tex.Com.App., 7 S.W.2d 68; and Texas Employers' Insurance Association v. Mallard, Tex.Civ.App., 180 S.W.2d 381, reversed on other gounds 143 Tex. 77, 182 S.W.2d 1000. Both of these cases involve proof of statements made by doctors while in the actual process of treating their patients. Distinction has been made between treating doctors and non-treating doctors, but such distinction has grown up in our jurisprudence with reference to statements made to the doctors by their patients, rather than statements made by the doctors with reference to the bodily condition of the patients. In the Knouff case above the court allowed the patient to testify the doctor told her that she had a misplaced kidney and was treating her for a misplaced kidney. In the Mallard case above the court allowed to be introduced the statement of a doctor that the...