Wininger v. Security Mut. Casualty Co.

DUNKLIN, Chief Justice. Mrs. Eva Wininger sustained a personal injury in the course of her employment for Libby, McNeil & Libby, engaged in the meat packing business in the City of Fort Worth. Her employer carried a Work-mén’s Compensation policy, issued by the Security Mutual Casualty Company, and she and her husband, A. W. Wininger, instituted this suit against that company to recover compensation for such injury. The case was tried before a jury, who returned findings on numerous issues submitted. According to those findings, Mrs. Wininger sustained an accidental injury to the middle finger of her right hand, in the 'course of her employment by Libby, [615] McNeil & Libby. That injury did not cause a total loss of the use of her finger, but a partial loss only, but by reason thereof, she had suffered 50 per cent incapacity, which had existed for 16 weeks; and at the time of the trial, she had entirely recovered from her injury and was then able to do the same character of work she was performing at the time of her injury, and able to perform the usual tasks of one engaged in the same or similar occupation. Damages found for such partial loss were fixed at $3.50 per week, aggregating $56, and judgment was rendered. for that amount, plus $7.28 interest. The jury made findings adverse to the plaintiffs on further issues tendered in their pleadings and having support in their testimony to the effect that the injury to the middle finger also caused an injury to her right arm; that her finger was injured as a result of being struck by a basket of meat in the hands of a coem-ployee, which caused her to lose her balance and fall, and the fall wrenched her back; that her right hand had been practically useless ever since the accident and she had never recovered from the injury to her back, and by reason of those injuries she had suffered permanent partial incapacity to do her work; and at the time of the accident plaintiff-was 36 years old, enjoying sound health and physically able to perform all the duties of her employment in an efficient manner. The only assignments of error presented here are to the exclusion of certain testimony of Dr. Frank P. Smith, which was offered by plaintiffs in support of the allegations last noted. According ‘to testimony of Dr. Smith,' heard .by the court in the absence of- the jury to determine whether or not it was admissible, he examined Mrs. Wininger at her request the day following the day of her alleged injury, and also one day before the first trial of the case, and had examined and treated her some 18 or 20 times since then, his last examination being made the day before the last trial, knowing at the time that he would be called to testify to what he then discovered. His testimony so given before the court was at considerable length, but briefly stated, was to the effect that on his first examination Mrs. Wininger related to him the history of her injury and from such and the symptoms of her injury discovered by him on his several examinations, his opinion as to her injuries and the effect thereof was formed. He further testified that he found the middle finger on her right hand badly swollen and sensitive to pressure, and also found the same sensitiveness in certain muscles in her back; and in his opinion the injuries so discovered impaired her ability to efficiently perform the duties of her employment, and were of a permanent character. He further testified that the history of her injury so given to him entered into the conclusion so reached, to some extent. After hearing such testimony, and after the jury was returned to the court room, the court sustained defendant’s objection to its introduction by plaintiffs, on the ground that it was based in part on the hearsay statements of Mrs.-Wininger. According to testimony, of Drs. McKnight and Beall, witnesses called by defendant, Mrs. Wininger’s finger was still swollen at the time of the trial, although Dr. Beall was of the opinion that it was not so serious as to interfere with her ability to work, and that it was temporary. Dr. McKnight had reset the dislocated finger immediately after the accident, and testified it should have been healed within 8 weeks. Another doctor testified that the finger had become infected from the injury. Both plaintiffs also testified to that condition of the finger and also to the alleged back injury in the region that Dr. Smith found sensitiveness, evidenced by flinching of .the patient when he pressed his finger upon the nerves, and further, that Mrs. Wininger was 36 years of age at the time of her injury, and in perfect physical condition. It- was not disclosed in Dr. Smith’s testimony just what was said by the patient in relating to him the history of her injury. However, she testified on the trial that while working she was accidentally struck by a meat basket in the hands of a co-employee, which caused her to fall, and in falling her finger struck a water fountain and was bent against the back of her hand and her back was wrenched; and we are cited to no testimony in the record tending to contradict her testimony as to how the accident occurred. That the court erred in excluding the testimony of Dr. Smith, we believe, is definitely settled by the recent decision of our Supreme Court, in Walker v. Great Atlantic & Pacific Tea Co., 112 S.W.2d 170. [616] The facts noted differentiate this case and the decision just cited from the decisions relied on by appellee, such as Texas & N. O. R. Co. v. Stephens, Tex.Civ.App., 198 S.W. 396; Texas Employers’ Ins. Ass’n v. Wallace, Tex.Civ.App., 70 S.W.2d 832; and other decisions cited in those cases; also from the decision in Republic Underwriters v. Lewis, Tex.Civ.App., 106 S.W.2d 1113, in which it was held to be reversible error to admit the testimony of two doctors to plaintiff’s diseased condition, because those doctors, at the request of plaintiff’s counsel, examined him before the trial, not for treatment but solely for the purpose of testifying in the trial, and the opinions testified to were based on plaintiff’s declara-, tions as to his subjective symptoms and radiograph findings made by another doctor. See, also, Traders & General Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391. We sustain other assignments of error to the exclusion of Dr. Smith’s opinion as an expert witness, in answer to hypothetical questions tending to show that if the facts as testified to by Mrs. Wininger, with respect to her injuries, were in substance true, then such injuries in the opinion of the witness were of permanent duration, and that by reason thereof she was totally disabled from performing the work she was doing at the time of her injuries. Dr. Smith had fully qualified as. an exper.t witness and the facts stated as a basis of the opinion sought were substantially as testified to by Mrs. Wininger. 19 Tex.Jur. p. 437, and authorities there cited. For the errors noted, the judgment of the trial court is reversed and the cause remanded.