Walker v. Texas Employers' Insurance Association

• Decision Date: 13 June 1956
• Docket Number: No. A-5633,A-5633
• Citation: 155 Tex. 617,291 S.W.2d 298
• Parties: James O. WALKER, Petitioner, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Respondent.
• Court: Texas Supreme Court

Page 298

291 S.W.2d 298

155 Tex. 617

James O. WALKER, Petitioner, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Respondent.

No. A-5633.

Supreme Court of Texas.

June 13, 1956.

Donald & Donald, Bowie, for petitioner.

Crowley, Wright, Miller & Garrett, Fort Worth, for respondent.

CALVERT, Justice.

The opinion handed down in this case by the Court on May 9, 1956, is withdrawn and the following is substituted therefor:

This is a Workmen's Compensation case in which petitioner, James O. Walker, recovered a trial court judgment against respondent, Texas Employers' Insurance Association. The Court of Civil Appeals reversed the judgment and remanded the case for retrial. 284 S.W.2d 795.

Reversal by the Court of Civil Appeals was predicated solely on a statement by a witness which that court found to be so highly prejudicial that, in spite of an instruction by the trial judge to the jury not to consider it, it probably resulted in an improper judgment.

Out of this one ruling of the Court of Civil Appeals the petitioner has evolved sixteen points of error,-too many to be summarized separately. They add up to the general proposition that the Court of Civil Appeals erred in holding that the statement of the witness was so highly prejudicial in nature as to require a reversal.

Respondent's counsel was cross examining petitioner's medical witness, Dr. L. D. Parnell, with particular reference to charges made by him for appearing as a witness and for making reports to the Industrial Accident Board. The answer of the witness to one question was that he did not make reports to the Industrial Accident Board, and the questions and answers then proceeded as follows:

'Q. Well, a report to be filed with The Industrial Accident Board?

'A. The only reports that I ever make is to the man who sends me a man for examination, and I examine him and make a report to him. I don't know what he does with it. If he sends it to the Accident Board, I know some times they do.

'Q. Well, what do you charge for--.

'A. I don't have any set charge for that. I charge for the work I do. There's not much money to it. If I wanted to get in the money, Judge, I would get in with the insurance company, because they have got it. These poor men that are broke up haven't got it.'

It is the italicized portion of the witness' answer of which complaint is made.

Respondent's objection to the statement of the witness was: 'That was not responsive to any question, Your Honor, and we move the court to grant a mistrial'. Thereupon the court admonished the jury as follows: 'Gentlemen, you will not consider the voluntary statement of the witness as any evidence in this case. It is not responsive.'

It will be noted that the only basis assigned for respondent's motion for a mistrial was that the statement was not responsive. The mere fact that the answer of a witness is not responsive to a question does not require the granting of a mistrial. For the purposes of this opinion, however, we shall treat the question as though respondent gave the same reasons for seeking a mistrial that it has given on appeal for seeking a reversal. On appeal the position of respondent has been, and is, that the witness' answer was highly prejudicial and inflammatory in that it arrayed the poor against the rich, class against class, and 'poor men' against the 'insurance company', and was so prejudicial and inflammatory that the prejudice could not be removed by the court's instruction.

In passing on the point of error raising this matter the Court of Civil Appeals said (284 S.W.2d 797): 'But in the class of cases under consideration, the only effect the rule (Rule 434, Texas Rules of Civil Procedure) would have would be to require us to examine the statement of facts, in the light of the verdict and judgment, in order to determine whether the prejudicial effect thereupon, which must be presumed to have resulted from the unresponsive statement, ¹ may be considered to have been either disregarded by the jury or to have had no effect upon their deliberations. * * * The jury found the employee to have sustained 80% permanent partial general disability, of which the injury alleged by him to have occurred while in the course of his employment was a producing cause. There is, therefore, no doubt but that there would be reversible error in the case had the employee's attorney made the same statement Dr. Parnell made from the witness stand during the course of an argument to the jury. * * * Certainly, in this case the insurer was as greatly prejudiced by the statement made by Dr. Parnell, supposedly an impartial witness, as it would have been had the statement been made by the employee himself, or by his attorney. * * * This is a case where the trial court was helpless to fully cure the error.'

If we properly read the opinion of the Court of Civil Appeals, that court stated, in so many words, that in determining whether the error complained of was reversible it would apply the rule of 'presumed prejudice'. The rule of 'presumed prejudice' has not prevailed in this state since the adoption of Rules 434 and 503, Texas Rules of Civil Procedure, in 1941. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600; The Development of the Doctrine of Harmless Error in Texas, 31 Tex.Law Rev. 1. Applying the rule of presumed prejudice, the Court of Civil Appeals seems to have concluded that the mere fact that the jury made a finding in some respects favorable to petitioner was conclusive evidence that the jury was influenced to return an improper verdict by the unresponsive statement of the witness.

Before an error may be made the basis of reversing a trial court judgment the appellate court must be satisfied that the error complained of 'was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case.' Reversal may not be predicated upon a simple showing that error occurred and that the jury returned a verdict in some respects favorable to the party the error was reasonably calculated to help. If it could, the further provision of Rules 434 and 503 that it must also appear that the error 'probably did cause, the rendition of an improper judgment' would be meaningless and pointless.

A determination of whether the error 'probably did cause, the rendition of an improper judgment' by influencing the jury to return a verdict it probably would not otherwise have returned is to be made from an examination of the record as a whole, City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860, 863, including the 'state of the evidence'. Lumbermen's Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367, 370.

The record reflects that petitioner's suit arose out of a claimed back injury. He claimed to have sustained an injury to his back while driving a truck in the course of his employment, and in his petition asserted that he had sustained permanent, total disability by virtue of his injury. He sued for the maximum benefits allowed by the Workmen's Compensation Act for premanent, total disability. Respondent defended the suit on the ground that petitioner had, at most, a temporary, partial disability which was not the result of any accidental injury sustained in the course of his employment with respondent's assured, but was solely the result of disease, or of natural causes, or of injuries sustained on some other occasion in some other employment.

The evidence offered by petitioner was altogether adequate to sustain a recovery of benefits for permanent, total disability. In addition to petitioner's testimony describing his injury and his physical condition, the witness, Dr. L. D. Parnell, testified that petitioner was totally disabled and that in his opinion his condition would never improve. On the other hand, respondent offered medical testimony that the pain in petitioner's back was the result of an arthritic condition arising out of calcium deposits which had accumulated over a long period of time, and that if he had any disability at all it did not exceed 10%.

The jury did not accept, in full, the...