Traders & General Ins. Co. v. Collins

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Traders & General Ins. Co. v. Collins, 179 S.W.2d 525 (Tex. App. 1944)
• Decision Date: 30 March 1944
• Docket Number: No. 11621.,11621.
• Petition History: writ ref'd w.o.m.
• Parties: TRADERS & GENERAL INS. CO. v. COLLINS.

179 S.W.2d 525

TRADERS & GENERAL INS. CO. v. COLLINS.

No. 11621.

Court of Civil Appeals of Texas. Galveston.

March 30, 1944.

Rehearing Denied April 20, 1944.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit under the Workmen's Compensation Act by Thomas Collins against the Traders & General Insurance Company to set aside an award of the Industrial Accident Board. Judgment for plaintiff, and defendant appeals.

Affirmed.

Kemper, Hicks & Cramer, of Houston, and Lightfoot, Robertson & Gano, of Fort Worth (E. B. Robertson, of Fort Worth, of counsel), for appellant.

Cain & Cain, of Liberty, and Allen, Helm & Jones, of Houston (Everett H. Cain, of Anahuac, and Albert P. Jones, of Houston, of counsel), for appellee.

GRAVES, Justice.

This appeal, in a compensation case, arising from the claimed injuries appellee received on June 12 of 1942 from the falling upon him of the gasoline truck he was then driving for his employer, is from a judgment, in appellee's favor against appellant, of the 80th District Court of Harris County, sitting with a jury, entered in part upon the jury's verdict in response to special issues submitted, and in part upon independent findings of the court itself from the evidence, in material substance as follows; to-wit:

"For total permanent incapacity at a compensation rate of $20.00 per week for the period of 401 weeks from the date of the injury, less a credit of $249.30, heretofore paid to plaintiff by the defendant in weekly benefits, and further providing that the matured payments, less said credit, now amounting to $1,184.84, should be paid by the defendants to the plaintiff, and that in addition thereto the defendant should pay to the plaintiff the sum of $6,631.43 in weekly installments of $20 per week, the first installment becoming due on October 18, 1943, and should run for a period of 331 weeks and four days from the date of the entry of this decree."

The cause had been taken by the appellee to the court below, on April 27, of 1943, in protest against a previous award made to him by the Industrial Accident Board, which he had been unwilling to accept—his pleadings and these consequent special-issues having plainly raised the fact-questions, upon which the quoted findings of court and jury of total and permanent disability were based.

Appellant neither objected nor excepted during the trial to the sufficiency of either these pleadings or issues. Hence it may not do so on appeal. Rule 274, Texas Rules of Civil Procedure; Galveston Theatres v. Larsen, Tex.Civ.App., 124 S.W.2d 936.

In inveighing here against such action of the trial court, appellant relies upon seven stated points-of-error, which may be summarized in this way:

(1) The alleged error of the court in permitting Dr. J. E. Bell to testify, over appellant's objection, first, as to his conversation over the telephone with Dr. Tucker, relating to the destruction of X-ray pictures of the appellee taken by Dr. Bell prior to the institution of this suit, on the ground that it was hearsay; second, in further permitting Dr. Bell to testify as to what such X-ray pictures had revealed, the pictures themselves not having been produced nor introduced in evidence on this trial.

(2) The finding in both the verdict and the judgment that appellee sustained total and permanent incapacity as the result of his alleged injuries is contrary to the great preponderance of the evidence, is not supported by the pleadings or the evidence, and is manifestly wrong.

(3) The finding in both the verdict and the judgment holding the appellant liable to the appellee for a wage-rate fixed under subsection 3, section 1, Article 8309, Vernon's Texas Civil Statutes, as being just and fair to both parties, was manifestly wrong and contrary to the great weight and preponderance of the evidence, in that there was no sufficient evidence to support the jury's finding that there was no other employee of appellee's class who had worked the whole of the preceding year.

(4) The court reversibly erred "In permitting the jury to change their verdict and answers to Special Issues Nos. 6, 7, 8, 11, 12 and 13, after such verdict had been received and accepted by the Court as a sealed verdict, and in orally instructing the jury, without appellant's consent, and in response to questions of the foreman, that the jury would have the right to change their answers to questions other than those which the Court, by written instructions, had advised the jury were in conflict, and that they would have the right to change their answers to as many of the questions as they might desire."

(5) The court erred in permitting appellee's counsel in his opening argument to the jury, over appellant's objections made at the time, to engage in improper argument to the jury, that was prejudicial to the appellant's cause.

After painstaking consideration of the record, the briefs, and oral arguments of counsel for both sides, it is concluded that none of appellant's points for a reversal should be sustained.

When reduced to its ultimate, the two-pronged objection to the testimony of Dr. Bell, relating to the X-ray pictures he had taken of the appellee following his injury and before this trial, gets down to the one legal question presented here, of whether or not there was laid a sufficient predicate for the admission of, first, Dr. Bell's objected-to testimony as secondary proof of what the X-ray pictures revealed as to the appellee's condition, and, second, of Dr. Tucker's statement over the telephone to Dr. Bell that he had destroyed such X-ray pictures—along with other things left by Dr. Bell in his Liberty office —when Dr. Tucker succeeded him there.

Appellant insists that no such predicate was properly laid in this instance, in that a fair appraisal of Dr. Bell's testimony shows that he did not know whether the X-rays he had so taken and left in his office at Liberty, Texas, had been lost or destroyed; but that he had merely assumed, from the hearsay statement of Dr. Tucker to him of the latter's having destroyed all left-over papers in that office when he took the same over from Dr. Bell, that they had been destroyed; that Dr. Bell's conversation over the long-distance telephone, in which Dr. Tucker had said that he also destroyed the X-ray pictures, was purely hearsay, inadmissible, and did not establish the loss or destruction of these X-rays.

That contention, however, loses much of its force, it is thought, when these circumstances inhering in the incident are considered: On December 16, 1942, Dr. Bell, at the request of appellant, examined the appellee, took the X-ray pictures of him, and made a report to it of his findings thereon; on September 1, 1943, thereafter, Dr. Bell left Liberty, where he had long practiced medicine, and moved his office to Houston, taking there with him all his X-ray files covering the period of six months next preceding his departure from Liberty; he carefully searched these files at Houston and did not find the Collins X-rays, he having left all his films that were thus (as these were) more than six months old in his old office at Liberty, where Dr. Tucker meanwhile had succeeded him; Dr. Bell further testified that he had had occasion to look for these films also there at Liberty, and that he had not been able to find them, but did find that they had been removed from his old office, he saying he found out they had been destroyed; when he so left Liberty he sold his clinic to Dr. Tucker, and when he was requested to bring these films to Houston to testify upon this trial he inquired of Dr. Tucker, as the last custodian thereof, as to what disposition the latter had made of Dr. Bell's abandoned films at Liberty, and was informed that Dr. Tucker had destroyed them, along with other things found in the Liberty office when he took it over.

It accordingly seems clear that the appellee, before offering the testimony of Dr. Bell concerning them, had given as complete and adequate an explanation of his inability to offer the original films in evidence as could reasonably have been expected of him. He had not himself caused them to be made. On the contrary, Dr. Bell had been chosen by the appellant itself to make them, and they had been left by it in his possession; the bona fide effort of the appellee to get them into the evidence on this trial, especially as the witness through whom that was attempted, Dr. Bell, was in court in answer to a subpoena to be there, seems self-evident.

Wherefore, it is held that the trial court did not abuse its discretion in receiving this secondary evidence, not only as to the disclosures by Dr. Bell of what such X-ray pictures had shown, but also as to his having learned through a long-distance telephone conversation with Dr. Tucker that the latter had destroyed them when he took over Dr. Bell's old office at Liberty. 17 Tex.Jur. 498; Dancy v. Missouri-Kansas-Texas Ry. Co., Tex.Civ.App., 49 S.W.2d 910; American National Ins. Co. v. Points, Tex.Civ.App., 81 S.W.2d 762; Slaughter v. Morton, Tex.Civ.App., 195 S.W. 897; Rule 434, par. 2, Texas Rules of Civil Procedure.

Neither is this court prepared to hold that the jury's finding that appellee sustained permanent and total incapacity to work, within the meaning of our Compensation Law, was so against the great weight and preponderance of the evidence as to have been manifestly wrong.

Lying at the base of the great body of testimony upon this issue is the fact that all five medical witnesses for the appellant testified that the appellee had received a "compression", or crushing fracture of one of the upper dorsal vertebrae, they differing among themselves only as to which one of such vertebrae had been so injured; not only so, but that testimony is also persuasive in support of the further finding that the condition of the appellee's back was permanent.

While the jury was not limited to the testimony of these medical witnesses touching...