Turner v. Stoker

• Decision Date: 03 December 1926
• Docket Number: (No. 200.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 289 S.W. 190
• Parties: TURNER v. STOKER.
• Court: Texas Court of Appeals

289 S.W. 190

TURNER v. STOKER.

(No. 200.)^*

Court of Civil Appeals of Texas. Eastland.

December 3, 1926.

Rehearing Denied December 31, 1926.

Appeal from District Court, Throckmorton County; Bruce W. Bryant, Judge.

Suit by S. H. Stoker against C. A. Turner. Judgment for plaintiff, and motion for a new trial overruled, and defendant appeals. Reversed and remanded.

Goggans & Allison, of Breckenridge, for appellant.

Benson & Dean and Wm. E. Hawkins, all of Breckenridge, for appellee.

RIDGELL, J.

The appellee, Stoker, brought this suit against appellant, Turner, to recover alleged damages claimed to have been suffered by appellee, plaintiff below, by reason of alleged malpractice on the part of appellant. Suit was filed in Stephens county and, upon plea of privilege being sustained, was transferred to Throckmorton county, Tex. By second amended original petition it was alleged that plaintiff was a farmer and stock raiser with limited education and experience in life, resided on a farm in the vicinity of Woodson, Tex., and that the appellant, Turner, was a practicing physician engaged in the general practice of his profession as a physician and surgeon in that vicinity, and holding himself out as skillful, qualified, and competent to practice.

It is alleged that in January, 1923, he, appellee, sustained injuries in a runaway accident whereby his left arm was bruised and dislocated, or both, and his left collar bone was bruised and broken, as well as his left jawbone, and from all of which he suffered intense bodily pain; that appellant was going to take charge of and treat said injuries and undertook to do so, both by express and implied agreement; that appellant carelessly and negligently failed and refused to diagnose and treat said injuries and hurts as was his professional duty; and that appellant was guilty of maltreatment of appellee and of malpractice upon him in the various particulars set forth at length in appellee's petition. It was alleged that as a direct and proximate result of appellant's maltreatment and malpractice, the appellee had suffered actual damages in the sum of $25,000 and punitory or exemplary in the sum of $25,000.

The appellant answered by general and special demurrers, general denial, and by special answer alleged that if appellee had suffered any injury and pain as approximately the result of the accident, they had been caused by and resulted from the acts of plaintiff himself, in that he did not permit the appellant to make a thorough examination of his injuries and had failed to follow instructions with regard to exercising his alleged injured arm and shoulder, and in regard to procuring an X-ray examination and further treatment.

The appellee replied to pleadings of defendant by demurrer and general denial of the allegations alleged.

Upon a trial of the cause, the court overruled the general demurrers and sustained certain special exceptions. At the conclusion of all the evidence in the case the defendant requested a peremptory instruction, which was overruled, and in response to the answers of the jury to special issues judgment was rendered in favor of appellee against appellant for the sum of $1,250, with interest. The appellant filed motion for a new trial, which was overruled, an appeal being perfected to this court.

The propositions of law made by appellant as raised by assignments will be disposed of in the order as appears material to the disposition of this appeal.

By first proposition appellant insists that prejudicial error was committed by the court in permitting appellee, Stoker, to testify "that he considered the injury to his jaw permanent." In the same connection by bill of exception it is shown that the witness was permitted to testify "that the injury would last all his life."

It is urged here that said testimony was prejudicial and harmful and was a conclusion of fact made by a nonexpert witness not shown to be qualified to give his opinion as to the effect and extent of the injury. We recognize the general and well-established rule that witnesses will not be permitted to state conclusions, but will only be allowed to state the facts and leave to the jury to arrive at the conclusions deducible from the facts.

It is also well established and a recognized rule that a nonexpert will not be permitted to express his opinion, unless it is shown and it appears that the witness from experience and knowledge is qualified to so give his opinion. Stowell v. Texas Employers' Ins. Ass'n (Tex. Civ. App.) 259 S. W. 311. If, however, the evidence is not a conclusion or opinion, but the statement of a fact, the rule has no application. In other words, a witness could expressly state that a person was blind, or that a limb was lost, and while in those cases it might be by strained construction insisted that the statements were conclusions and yet be such apparent or known fact that it would be folly and ridiculous to refuse the testimony by applying the rule of evidence that witnesses can only state facts and not conclusions. Any one would know if an eye was out or a finger was off that the injury would be permanent.

It is difficult to determine just when the rule applies and find the dividing line between statement of facts and opinion of fact, and a great deal must and should be left to sound discretion of the trial court.

In the case of Weatherford M. W. & N. W. Ry. Co. v. White, 55 Tex. Civ. App. 32, 118 S. W. 799, the court says:

"By the third assignment of error, it is contended that the court erred in the admission of certain evidence. While it is the proper and correct practice for the witness to state the facts and let the jury draw the proper deductions arising therefrom, it could not be held, we think, in this case, under the evidence, that the question and answer complained of constitute reversible error. The answer of the witness was not a bare conclusion or belief not founded on facts or observed data, but was founded upon personally observed data. All the physicians agreed in their evidence that the appellee's left leg had become an inch shorter than the right. One of the physicians testifying for the appellee said: `I think she will remain more or less crippled as long as she lives,' and on cross-examination by the appellant said, `I do not think she will ever recover entirely.' The two other physicians do not say that the injury was not permanent. That her left leg was shorter than the other, and had become so from the injury was a fact within her knowledge, and was an apparent and external injury. When she answered that she believed the injury was for life, she but stated a fact known as well to laymen as to experts. If a finger or hand is cut off, a layman could as well know that it would not grow back again, and that it would be an injury for life, as could a physician."

In the case of Abee v. Bargas (Tex. Civ. App.) 65 S. W. 489, a nonexpert witness was permitted to testify that plaintiff was paralyzed and could not speak. In the case of San Antonio Traction Co. v. Flory, 45 Tex. Civ. App. 233, 100 S. W. 200, the witness was permitted to testify that the injured party was "all crippled up," and "that after [she] got up out of bed she could not lift anything" and "was always suffering pain"; that "after the accident she was not half the woman she was before."

In the case of Pecos & N. T. Ry. Co. v. Suitor (Tex. Civ. App.) 153 S. W. 185, the witness was permitted to testify that the injured party had an impediment in his walk. In the case of C., R. I. & G. Ry. Co. v. Evans (Tex. Civ. App.) 143 S. W. 966, the plaintiff, although not an expert, was permitted to testify that with his eyes in their present condition he could not pass a physical examination for section foreman.

In describing the accident the witness R. G. Stoker, testified:

"He was driving a mule team that ran away from him and run over a bunch of mesquite, and as the wagon went over he fell off and barrels of water he was hauling fell on him as he was thrown out."

The plaintiff testified that by reason of the runaway he sustained certain injuries; that he was hurt in the arm and shoulder and head and some gashes on eye, left eye."

Without further quoting the testimony it is undisputed that in the accident the plaintiff was seriously injured; his jaw was broken; and that at the time of the trial his face was distorted in appearance from his broken jawbone; his shoulder was stiff and he could not raise his arm; and that he was unable to lift his left hand above the point of the hip, which condition and situation was best known to plaintiff than any other person, and for the witness to testify as complained would not be a conclusion, but, as we view it, a statement of fact justifiable and permissible as a part of the testimony of the nature and condition of the injury. Anyhow the amount of the verdict in this case is conclusive that no harmful result was the outgrowth of the admission of said testimony. If the injury to the jaw and shoulder was permanent, certainly it could not be said that the jury in this case was awarding damages for such permanent injury. On the other hand, the testimony of the plaintiff was merely cumulative, for the permanency of the injury is proven by the testimony of Dr. Williams. Dr. Williams testified "that plaintiff's jawbone was broken in two places; that the jawbone was shorter than the other; that the arm was in an ankylosed condition."

Without reciting the testimony of Dr. Williams in further...