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

• Decision Date: 10 January 1898
• Citation: 43 S.W. 876
• Parties: WHEELER v. TYLER S. E. RY. CO.
• Court: Texas Supreme Court

43 S.W. 876

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

Supreme Court of Texas.

January 10, 1898.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Burrell Wheeler against the Tyler Southeastern Railway Company for personal injuries. From a judgment of the court of civil appeals (41 S. W. 517), reversing a judgment of the district court for plaintiff, he brings error. Affirmed on condition that plaintiff enters a remittitur for $250.

Reaves, Walker & Reaves and J. F. Onion, for plaintiff in error. Sam H. West, H. B. Marsh, and J. W. Fitzgerald, for defendant in error.

BROWN, J.

This suit was brought by the appellee, plaintiff in error, against the Tyler Southeastern Railway Company, to recover damages for a personal injury received by the explosion of a boiler to a passenger locomotive owned and operated by the railway company. The only question presented on this application arises upon the action of the district court in admitting the testimony of Dr. Driskill, which was at the time objected to, and a bill of exceptions reserved. That portion of the testimony objected to is as follows: "I believe that there are no other symptoms that you have not asked me about, except that he complains all the time with a roaring and a dull, aching pain in his head, more especially in the back of his head." The defendant objected to the testimony (1) because it was hearsay; (2) because it was evidence with respect to the symptoms of a disease or injury not testified to by the plaintiff; which objections the court overruled. Wheeler recovered judgment in the district court, from which an appeal was taken, and the judgment was reversed by the court of civil appeals of the Fourth supreme judicial district on account of error in admitting the foregoing evidence. The evidence of the witness Dr. Driskill, which was objected to by the defendant in error upon the ground that it was hearsay, is stated in the bill of exceptions, as above copied, as follows: "He complains all the time with a roaring and a dull aching pain in his head, more especially in the back of his head." We understand from this language that, while the witness was engaged in examining the plaintiff at the several times named by him, the plaintiff complained of a roaring and pain in his head. This indicates that the pain of which he complained was present at the time that the complaint was made, and that the complaint was not a recital of what had transpired, nor a mere statement of existing conditions, but was the natural expression produced by the sensation of roaring and pain in the head at the time; that is, that the complaint made was induced by the roaring and the pain as it then existed, and that the complaint itself was in fact a part of the res gestæ and therefore not subject to the objection that it was hearsay. Railway Co. v. Brown, 78 Tex. 397, 14 S. W. 1034; Railroad Co. v. Shafer, 54 Tex. 641. Upon the argument of the case in this court the defendant in error urged the objection to the testimony that at the time the plaintiff made the complaint testified to by Dr. Driskill the latter was engaged in examining the plaintiff for the purpose of testifying in his case, the witness being employed by the plaintiff for that purpose. The plaintiff in error met and combatted that proposition as if it had been properly presented. We presume that the same course of argument was pursued in the court of civil appeals, and that this led the honorable court of civil appeals to place its decision upon the ground stated; that is, that the witness Driskill being, at the time the declarations were made, employed by the plaintiff to make an examination of him with a view to testifying in the case, and being at the time engaged in that examination, the complaints of the plaintiff, made under such circumstances, were not admissible in evidence. The objection presents a very interesting question, and Chief Justice James in the opinion prepared by him discusses it in a very clear and able manner; but we do not feel authorized to consider it in this case, for the reason that it was not presented to the...