Tyler S. E. Ry. Co. v. Wheeler

• Decision Date: 12 May 1897
• Citation: 41 S.W. 517
• Parties: TYLER S. E. RY. CO. v. WHEELER.
• Court: Texas Court of Appeals

41 S.W. 517

TYLER S. E. RY. CO. v. WHEELER.

Court of Civil Appeals of Texas.

May 12, 1897.

Appeal from district court, Smith county.

Suit by Burrell Wheeler against the Tyler Southeastern Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

Sam H. West, H. B. Marsh, and J. W. Fitzgerald, for appellant. Reaves, Walker & Reaves, for appellee.

JAMES, C. J.

This is an action brought by appellee, an employé of defendant, for damages for injury alleged to have been sustained through defendant's negligence, by the explosion of a boiler, resulting in his total disability.

It is not necessary to pass upon the first and second assignments of error. Under the seventeenth and nineteenth assignments, the following proposition is made: "When a physician, at the instance of plaintiff, makes an examination of him solely with a view of testifying as an expert in his behalf at the trial, statements of complaints made to him by the plaintiff in respect to the nature, character, and extent of his injuries, or as to the pain suffered by him, cannot be stated by him to the jury; the same being no part or parcel of the res gestæ." The great weight of authority is against the use of such statements as evidence when the purpose of the examination is solely to enable the physician to testify on the trial. In the present case one of plaintiff's witnesses, a Dr. Driskill, who examined plaintiff on several occasions only for the purpose of testifying as an expert on the trial of this cause, was allowed to state that plaintiff "complains all the time of a roaring and a dull, aching pain in his head,—more especially in the back of his head,"—which was objected to on the grounds (1) that it was hearsay, and (2) that it was evidence in respect to a disease or injury not testified to by the plaintiff. Inasmuch as plaintiff did testify: "I have a dull headache pretty much all the time. * * * My headache is in the back of my head,—a dull, stupid headache,"—it appears that plaintiff testified to substantially the same matter, and therefore the second ground of the objection was not well taken. The question of interest on this assignment centers in the first objection. Appellee insists that it was proper testimony, and, if not so, that it could not have influenced the jury in finding their verdict, and, further, that appellant's witnesses testified to substantially the same thing. These reasons, on examination, prove either not satisfactory, or not borne out by the record. Defendant's witnesses testified no further on this subject than that, on examination of plaintiff a year or more before the trial, he complained of dull pains in his head. This is not the same as the testimony in question,—that plaintiff complains all the time of pain in the head; Driskill's testimony being, in effect, that there was a continuous complaint by plaintiff of headache. The testimony in the case did not establish conclusively that plaintiff was totally disabled by the explosion, there being testimony to the contrary; hence the testimony of Dr. Driskill complained of cannot for this reason be said to have been harmless. Nor is the evidence, if improper, rendered immaterial by the fact that plaintiff himself testified that he suffered from continuous headache. Had plaintiff been allowed, without objection, to testify that he had complained to Dr. Driskill of headache at the several examinations he made, then defendant might be barred from complaining. But this was not the case. He testified that he had headache pretty much all the time, and the testimony of the doctor complained of in this assignment was corroborative of plaintiff on a subject which may have materially entered into the conclusions of the jury, and hence was not immaterial. Davidson v. Cornell (N. Y. App.) 30 N. E. 573; Stewart v. Everts (Wis.) 44 N. W. 1094. In the latter case it is stated: "It may be urged that this evidence could not have prejudiced the defendant, because the plaintiff had made the same statements to the jury as a witness on the trial. This fact has never been held a sufficient reason for holding that the statements of the party made out of court, and not under oath, may be received in evidence on the trial. It is a method of bolstering up or sustaining the evidence of a party which has never received the sanction of the court, and is clearly inadmissible." A mere statement or complaint of pain to a physician is nothing more...