Travelers Ins. Co. v. Blazier

• Decision Date: 24 February 1950
• Docket Number: No. 15110,15110
• Citation: 228 S.W.2d 217
• Parties: TRAVELERS INS. CO. v. BLAZIER.
• Court: Texas Court of Appeals

Page 217

228 S.W.2d 217

TRAVELERS INS. CO. v. BLAZIER.

No. 15110.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 24, 1950.

Rehearing Denied March 24, 1950.

Cantey, Hanger, Johnson, Scarborough & Gooch and Emory Cantey, all of Fort Worth, for appellant.

Mays & Mays, Clark & Craik and J. Harold Craik, all of Fort Worth, for appellee.

McDONALD, Chief Justice.

Appellee was awarded judgment for $950 as workmen's compensation in a non-jury trial. He alleged in substance that on February 2, 1948, he suffered a heat stroke and that as a result of the heat stroke and the weakened and exhausted condition which followed he contracted polio. He further alleged that 'as a result of such afflictions' he suffered ten weeks total and thirty weeks fifty per cent partial disability.

The trial court found that he suffered the alleged heat stroke on September 2, 1948, that he was exposed to a greater hazard and liability to sun stroke or heat stroke than the public generally, that the heat stroke or sun stroke contributed to and was a producing cause of his disability, and that polio was not the sole cause of appellee's disability. The court found eight weeks total and thirty weeks fifty per cent partial disability, and further found, under the wages he had been receiving, that the rate of compensation for both total and partial disability was $25 per week.

The evidence consisted solely of the testimony of appellee and of Dr. Ernest D. Rogers. Dr. Rogers was appellee's family physician, who treated appellee during his illness at appellee's request, and he was called as a witness by appellee. Appellee testified in detail about his illness, the manner of its onset, the symptoms, etc. He did not undertake to express an opinion as to whether or not he had suffered a heat stroke, but did say that 'they said' that he suffered a mild case of polio. He carried a policy of insurance providing for payment of medical expenses incurred in treatment of polio, he made claim to the insurer on the policy, and the insurer paid the doctor and hospital bills on the basis that he had polio.

Dr. Rogers testified that he diagnosed appellee's case as polio, and gave it as his opinion that appellee did not suffer a heat stroke. He said that headaches, nausea, blind spots before the eyes, dizziness, and other disorders which appellee testified he experienced on the occasion in question were symptoms of heat stroke, but declared several times, on both direct and cross examination, that appellee had polio but did not have a heat stroke. In response to hypothetical questions he said that the facts stated in the questions would cause one to think about heat stroke, but it is our view that Dr. Rogers did not, in response to any hypothetical question that put to him the facts as testified to by the witnesses, make any answer that conflicted with his repeatedly expressed opinion that appellee suffered an attack of polio but not a heat stroke.

Certain rather well settled rules of evidence are applicable to the situation before us. The opinion evidence of a physician is but evidentiary and is never binding upon the trier of facts. The court or jury may reject all of the theories of one physician and adopt the theories of another, or the conclusions of a witness may be adopted in part and rejected in part. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345. But the rule allowing the trier of facts to adopt in part and reject in part the conclusions of a witness is subject to the qualification that his testimony must be examined as a whole to give true effect to it, and that the court will look to all of the testimony of the witness to determine its legal sufficiency to support the findings of judge or jury that are essential to the case of the prevailing party. Jones v. Traders & General Ins. Co., 140 Tex. 599, 169 S.W.2d 160. There must be evidence tending to support the facts assumed in a hypothetical question. Missouri, K. & T. R. Co. of Texas v. Williams, 63 Tex.Civ.App. 368, 133 S.W. 499. The party who calls a witness thereby vouches for his credibility and is bound by his testimony, save that it is permissible to contradict the testimony of one's own witness by independent facts showing its falsity or inaccuracy. Whitefield v. Whitefield, Tex.Civ.App., 160 S.W.2d 306, writ ref. w. o. m.

In Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, as well as in many other cases that could be cited, it is recognized that lay witnesses may give opinions concerning many matters pertaining to sickness or good health, and that the opinions of experts, although persuasive, is not conclusive under most circumstances. But there are some subjects about which it is only the opinions of experts that have any value as evidence, and about which it cannot properly be assumed that laymen can form correct opinions either from their own knowledge and experience or from opinions expressed by lay witnesses. It cannot be doubted that diagnosis of the disease of poliomyelitis and the question of its cause are such subjects. Lumbermen's Mut. Casualty Co. v. Vaughn, Tex.Civ.App., 174 S.W.2d 1001. If there had been only the testimony of appellee in the present case, with no evidence of a diagnosis of polio, it might be that the trial court, though a layman, would have been justified in finding from the evidence that a heat stroke had been suffered. But where the question to be determined was whether appellee had polio or a heat...