# Texas Employers Ins. Ass'n v. Hatton

> Texas Supreme Court · February 11, 1953 · 152 Tex. 199

URL: https://www.frixlaw.com/law-library/cases/9653504

## Case

- **Full name:** Texas Employers Insurance Association v. Arthur C. Hatton
- **Court:** Texas Supreme Court
- **Decided:** February 11, 1953
- **Citations:** 152 Tex. 199; 255 S.W.2d 848; 1953 Tex. LEXIS 498
- **Precedential status:** Published
- **Opinion:** Concurrence by Calvert
- **Judges:** Culver, Calvert, Smith
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9653504

## Opinion text

Mr. Justice Calvert,
joined by Justice Smedley, concurring.
The majority of the court by the opinion written by Justice Culver sustains the petitioner’s first two points of error, thereby holding that each of the rulings therein complained of was erroneous.
I agree that the cause should be remanded but only because of the error complained of in the first point.
*205 I do not regard the ruling complained of in the second point as erroneous. The point of error is set out in order to bring it under closer analysis:
“The Court of Civil Appeals erred in holding that the trial court had discretion to refuse to permit defendant’s medical witness to demonstrate the freedom of movement in plaintiff’s toes, foot and ankle by manipulating same in front of the jury after plaintiff had waived his immunity by voluntarily exhibiting his foot to the jury and attempting to demonstrate the loss of motion therein.”
It will be noted that petitioner does not complain that it was denied the right to a reasonable examination of respondent’s foot, as indeed it cannot as will later be seen; its claim of error rests entirely upon its demand to “demonstrate” the flexibility of respondent’s toes, foot and ankle by “manipulating” them “in front of the jury.” The theory upon which the right is demanded to demonstrate to the jury the extent of respondent’s injury by manipulating his injured foot is this: By exhibiting his foot to the jury the respondent waived the inviolability of his person, and the foot being thus offered in evidence, the petitioner had the right, as by way of cross-examination, “to make such further exhibition of it as may have been relevant to the issues in the case,” including the right to “manipulate” it before the jury. No case so holding has been cited by petitioner, none has been cited in the majority opinion, and none has been found by the writer after extended research. Moreover, such a holding is directly contrary to the spirit underlying the cases relied on by petitioner and by the majority.
Petitioner contends that the right asserted is governed and controlled by rules of common law and I will first examine the problem in the light of such rules.
It is well established in the jurisprudence of this state that in the absence of a statutory requirement to the contrary, an injured litigant cannot be compelled to submit himself or his injured parts to an examination by his adversary or even by an impartial examiner. A contrary rule prevails in some states and was once urged upon the courts of this state, but it was rejected by this court in a forcful opinion by Judge Brown in the case of Austin & N.W.R. Co. v. Cluck, 97 Texas 172 , 77 S.W. 403 , 64 L.R.A. 494 , 104 Am. St. Rep. 863 , 1 Ann. Cases 261. In that case this court recognized a division of authority on the question, analyzed the leading cases representing the two points *206 of view, and said: “It is sufficient to say for the courts of Texas that the authority to order such an examination and force a party to submit to it is found neither in the common law nor in the statute laws of this state, and therefore does not exist and cannot be exercised by the courts of Texas.”
The rule of the Cluck case has never been repudiated and in keeping with and to preserve the spirit of that decision it has been held that the injured party does not lose his immunity from involuntary examination merely because he points out to the jury the part of his body that has been injured or in which he suffers pain. Texas Electric Ry. Co. v. Rowell, Tex. Civ. App., 211 S.W. 788 , writ dism.; Safeway Stores, Inc. of Texas v. Rutherford, Tex. Civ. App., 101 S.W. 2d 1055 , affirmed 130 Texas 465 , 111 S.W. 2d 688 . Moreover, a Rule requiring examination at one time adopted by this court was subsequently repealed.
But petitioner contends that the courts have established an exception to the rule of the Cluck case, which exception required the trial court to permit petitioner to demonstrate in the presence of the jury the condition of respondent’s foot by manipulating it. In support of its position petitioner cites the following cases, some of which are relied on by the majority for sustaining petitioner’s contention: Chicago, R.I. & T. Ry. Co. v. Langston, 19 Texas Civ. App., 568, 47 S.W. 1027 , on motion for rehearing, 19 Texas Civ. App. 585, 48 S.W. 610 , certified questions answered, 92 Texas 709 , 50 S.W. 574 , 51 S.W. 331 ; Houston & T.C.R. Co. v. Anglin, 99 Texas 349 , 89 S.W. 966 , 2 L.R.A. (N.S.) 386; Galveston H. & S. A. Ry. Co. v. Chojnacky, Tex. Civ. App., 163 S.W. 1011 , no writ history; Bower v. Lively, Tex. Civ. App., 11 S.W. 2d 556 , no writ history; Panhandle & S.F. Ry. Co. v. Sedberry, Tex. Civ. App., 46 S.W. 2d 719 , no writ history; Haynes v. Town of Trenton, 123 Mo. 326 , 27 S.W. 622 . In addition, the majority opinion cites the case of Kenney v. LaGrone, Tex. Civ. App., 62 S.W. 2d 600 , affirmed, 127 Texas 539 , 93 S.W. 2d 397 .
The foregoing cases undoubtedly announce an exception to the rule of absolute immunity laid down by the Cluck case, but I cannot agree that the exception is as broad as petitioner contends. The cases most certainly do not expressly hold, and I cannot read into them a holding, that by exhibiting his injured parts to the jury the litigant loses not only his immunity from examination by the opposite party, but, in addition, under a *207 theory of cross-examination, authorizes the opposite party to conduct that examination in the presence of the jury, with the right to manipulate and experiment as well. I cannot agree with petitioner in its conclusions expressed as follows: “Plaintiff cannot waive his privilege as against a visual examination and still insist on it as against an examination by manipulation or other appropriate means. * * * The doctor cannot be limited to a visual examination, but must be allowed to apply whatever tests he considers to be reasonably necessary to determine the true nature and extent of the claimed disability.”
The principal Texas case on which petitioner relies is Ry. Co. v. Langston, supra. That case was decided by a divided court and the dissent by Justice Hunter is not without force. However that may be, the majority view was adopted and approved by the Supreme Court and the exception to absolute immunity was created. What did the court say the exception was? The nature and extent of the exception is found in the language of the court, later quoted with approval by this court in Houston & T. C. Ry. Co. v. Anglin, supra, as follows, ( 99 Texas 349 , 89 S.W. 966 ) : “But, inasmuch as appellee invited an inspection and examination of her wounded limbs by making profert of them on the trial, * * * she thus waived her right to object, upon the ground of invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court, of the wounded pm‘ts. She thus, by her own voluntary act, conferred upon the court jurisdiction to compel what otherwise she might have refused to submit to.” Does this language say that by exhibiting her wounded legs the plaintiff proffered them in evidence with the resulting right in the defendant, as by way of cross-examination, to apply in the presence of the jury “whatever tests it considers to be reasonably necessary to determine the true nature and extent of the claimed disability,” including the manipulation of the foot? It. certainly says no such thing and the language of the court is too simple, clear and plain to be made to say it by construction or inference.
In the Langston case the defendant demanded the right to have the plaintiff’s legs examined by its physicians, at one point in the proceedings suggesting that it be done “here and now.” The plaintiff resisted the defendant’s motion, although agreeing to an examination by disinterested medical witnesses. The trial court’s action in overruling the defendant’s motion was held to be error but the language of the Court of Civil Appeals in so holding is worth noting. It said: “The objection made by appel *208 lee’s counsel should have been overruled, and the witnesses permitted then and there, or at suoh other reasonable time and place as the court might appoint, to make the proposed examination, and give the result of it to the jury.”
In the Anglin case this court simply reaffirmed the rule of the Langston case, saying: “The rule acted upon in that case, that, tuhere a party has once exhibited his person to• the jury to show the extent of his injuries, he may be required during the course of the trial to re-exhibit them, has never been modified by this court.” This is a far cry from saying that once a person has exhibited his injury he must, in the presence of the jury, submit to such manipulations as are reasonably necessary to show the nature and extent of his injuries!
Galveston, H. & S. A. Co. v. Chojnacky is authority for no more than that immunity being waived the right of examination exists and the court approved the language of the Langley case' that this right was “to a reasonable and proper examination, under the direction of the court.”
In Bower v. Lively, supra, the only holding was that by his exhibition of his injured eye the plaintiff lost his immunity from examination by the defendant-. '
In Panhandle & S. F. Ry. Co. v. Sedberry, supra, plaintiff exhibited his injured foot to the jury and the Court "of Civil Appeals held that the trial court “should have granted the de fendant the right to have the injured member examined under proper circumstances by physicians of the defendant’s selection.” There was no holding here of the right to manipulate in the presence of the jury.
In Kenney v. LaGrone, supra, the plaintiff exhibited her injuries to the jury and the defendant assigned error to the refusal of the trial court “to grant appellant’s motion to compel appellee to submit to a physical examination by doctors of appellant’s selection.” The court recognized the general rule of immunity from involuntary examination but recognized also that this immunity was lost to one who voluntarily exhibited his injuries to the jury. “In such case, speaking generally," said the court, “the defendant may properly demand that the plaintiff submit to reasonable examination by reputable physicians of defendant’s selection * * *.”
We come now to consider the Missouri "cáse of Haynes v. *209 Town of Trenton, supra. It is one of the principal authorities upon which petitioner relies. In that case a judgment in favor of the plaintiff was reversed and remanded by the Supreme Court of Missouri on grounds that did not deal at all with the problem here under search. The opinion of the court was written by Justice Barclay and Chief Justice Black and Justice Brace concurred in the judgment and in that opinion. In a separate concurring opinion, not joined in by any of the other justices and therefore not in the opinion of the court, Justice McFarlane expressed the view that the trial coui-t had also erred in refusing to require the plaintiff, whose leg had been exhibited to the jury, to submit the leg for further examination to defendant’s physicians who had previously examined it. There is language in the opinion to the effect that “the question was not as to the right of the defendant to have an examination of the injuries made, but as to the right to test the effect and reduce the weight of evidence introduced by the plaintiff.” Aside from the fact that the views expressed did not represent the opinion of any court, the question was in fact one involving only a right of examination, not of experiment, and there is nothing in the opinion to show that the examination was to be conducted in the presence of the jury.’ ■ •
An anlysis of petitioner’s authorities fails to furnish support for the majority holding that because the respondent exhibited his foot to the jury the petitioner thereby became entitled, as a matter of right, to manipulate the foot in the presence of the jury. As a matter of fact, petitioner’s own cases indicate exactly the contrary as the foregoing analyses show beyond doubt. There are other cases which buttress the conclusion that an injured party who does no more than exhibit his injured member to the jury thereby confers upon the opposite party only the right to require another exhibition thereof so that such party may make a, like examination in the presence of the jury, with the right to have such further reasonable examination thereof as the trial court in its discretion may permit and direct’ It will be well to refer to some of these cases.
In the case of St. Louis S. W. Ry. Co. v. Smith, 38 Texas Civ. App. 507, 86 S.W. 943 , no writ history, decided after and in the light of the Langston case, the court said: “But we are inclined to the opinion that if the appellee exhibited his eye to the jury, and his physician then and there undertook, while testifying, to point out the injury to appellee’s eye, appellant was entitled in rebuttal thereof to call medical experts of its own *210 selection to in like manner examine the eye, and give in testimony their opinion as a result of such examination."
In the case of International & G. N. Ry. Co. v. Bartek, Tex. Civ. App., 177 S.W. 137 , affirmed Com. App., 213 S.W. 602 , it was held that the trial court did not err in refusing to require a plaintiff, who exhibited his back to the jury to which both his own and the defendant’s medical witnesses pointed in connection with their testimony, to submit to a doctor of the defendant’s selection for the purpose of having X-rays of the back made, particularly since he had agreed to have X-rays made by another competent and distinterested expert.
In the case of Chicago, R. I. & G. Ry. Co. v. Pemberton, Tex. Civ. App., 170 S.W. 108 , writ refused, in which the plaintiff exhibited his knee to the jury in such manner that the jurors could hear the grating sound in the joint when the knee was moved, it was held that the trial court did not err in refusing the defendant’s request to require the plaintiff to submit, under anaesthetic, to examination of the knee by defendant’s experts. A like holding was made in the case of Mackay Telegraph Co. v. Armstrong, Tex. Civ. App., 241 S.W. 795 , writ dism., in which the plaintiff, having made proferí of his injured knee, the defendant demanded the right to have the plaintiff placed under an anaesthetic, laughing gas, while its medical experts examined the knee. The refusal of the demand was held not to be error, the court saying: “No such assault as that contended for by appellant will be permitted in any Texas court on the personal liberty of a citizen of this commonwealth.”
I have found no case that treats the defendant’s right of examination growing out of the plaintiff’s loss of immunity therefrom as a “right of cross-examination.” The courts do not treat the problem in that light. This is illustrated by the Illinois case of Wheeler v. Ry. Co., 267 Ill. 306 , 108 N.E. 330 ,339 where it is said: “It is further insisted that the court erred in refusing to allow the defendant’s physicians to examine the plaintiff’s leg in the presence of the jury; the argument being that, since the plaintiff exhibited the injured member to the jury, the defendant’s physician had a right to make a physical examination of the leg then, the same as they would have to examine any other exhibit in the case. It does not appear from the record that any examination of plaintiff’s leg was made in the presence of the jury, other than the mere exhibiting of the same to the jury. We do not think the mere showing of the injured member *211 to the jury gave the defendants the right to invade the privacy of plaintiff’s person and make him submit to an extended scientific examination of the same in the presence of the jury.” So, also, one of our own courts, in the case of San Antonio & A. P. Ry. Co. v. Stuart, Tex. Civ. App., 178 S.W. 17 , writ refused, has said: “It would be better in most cases to have the jury withdrawn while the examination is being made.”
Another case graphically illustrating that the problem is not one of scope of examination and cross-examination of a witness is the case of Peters v. Hockley, 152 Ore. 434 , 53 P. 2d 1059 , 103 A.L.R. 1347 . In that case the plaintiff was asserting the right to have a demonstration made in the presence of the jury as a part of her right of cross-examination of the defendant’s medical witness. Although it would appear that the demonstration made was well within the general scope of cross-examination in that it had a tendency to break down and minimize the effect of the Doctor’s testimony, it resulted in outcries of pain by the plaintiff and it was held to be reversible error.
Thus far the question presented has been dealt with as though it arose in the course of the trial of a common law negligence suit and therefore as though it were governed by rules of law applying in such cases. Treating the problem thus, I have reached the following conclusions from the cases examined: (1) The injured party has absolute immunity from any type of involuntary examination by the opposite party or his representatives. (2) This immunity is lost if in the course of trial the plaintiff exhibits the injured part of his body to the jury. (3) The loss of immunity does not arise out of the right of cross-examination with the ensuing right in the defendant to conduct in the presence of the jury all such examinations, manipulations or other such experiments on the body of the plaintiff as are necessary to destroy in the minds of the jury the evidentiary value, if any, of the exhibition. (4) The loss of immunity invests the defendant with the absolute right to make in the presence of the jury the same general type of exhibition or examination as has been made by the plaintiff. (5) The loss of immunity also invests the defendant with the right to make such further examination as is reasonable under the circumstances, preferably out of the presence of the jury, the time, place, nature and extent of such further examination, however, to be fixed by the trial judge, his action in that respect being error only upon a showing of clear abuse of discretion. ~
*212 Under the common law rules just enumerated it was not error for the trial court in this case to refuse to permit the petitioner’s medical witness to manually manipulate respondent’s foot. Respondent had merely exhibited his foot to the jury, indicating the extent to which the front of the foot could be depressed by muscular control. The demonstration which petitioner wished to conduct was not in like manner with the demonstration made by respondent. As a matter of fact, respondent’s counsel offered to have and did have the respondent to re-exhibit the foot so that petitioner’s medical witness could testify with respect to his previous examination thereof and from a visual examination thereof. Moreover, the respondent was required to pull off both shoes and socks, to roll his pants leg up to the knees, to stand in the presence of the jury and to turn around in the presence thereof so that petitioner’s medical witnesses could testify with greater clarity with respect to the condition of the injured foot as compared with the other foot. Respondent insisted, however, that defendant’s medical witness should not undertake to manually manipulate the foot in the presence of the jury, the while offering, nevertheless, to have respondent submit to such a general examination out of the presence of the jury. The trial judge, in the exercise of his discretion, overruled the request of the petitioner, in effect holding that he would permit the type of examination requested only out of the presence of the jury. Under the many authorities heretofore cited the ruling of the court in this respect was obviously not an abuse of discretion.
That the time and place of the type of examination sought should be left largely to the discretion of the judge who has the parties and the emotional factors before him can be illustrated from the facts of the instant case. Suppose the manipulation experiment had been permitted, and the respondent, not wishing to be made the subject of the experiment in the presence of the jury, had, through muscular control, made it impossible for the doctor to bend his foot or his ankle except by unusual effort or exertion? Or suppose, having relaxed his muscular control, the respondent had suddenly cried out as though in pain, there being no one in the courtroom who could know or say whether the pain was real or simulated, actual or feigned? It is not a question of whether petitioner should have been permitted to run this risk at its own request; it is a question of whether the court should have been required to incur the risk of such a disturbance of orderly trial processes and courtroom decorum.
*213 In actuality, this was not a trial of a common law negligence case; it was a trial of a workmen’s compensation case. In compensation cases the injured party has lost his right to immunity from involuntary examination through statutory provision. Article 8307, Sec. 4, provides that the Industrial Accident Board “may require any employee claiming to have sustained injury to submit himself for examination before such Board or some one acting under its authority at some reasonable time and place within the State, and as often as may be reasonably ordered by the Board to a physician or physicians authorized to practice under the laws of this State.” It is further provided that if the employee or the insured requests, “he or it shall be entitled to have a physician or physicians of his or its own selection present to participate in such examination.” It is held that when a compensation case reaches court, the court has the same power as the Board to require a physical examination. Indemnity Ins. Co. of North America v. Murphy, Tex. Civ. App., 53 S.W. 2d 503 , no writ history. Accordingly, when a compensation claimant becomes a witness in a case he has already lost his immunity from involuntary examination and a display of his injured member can have no effect on his rights in that respect. The only right that the insurer can acquire from a mere exhibition of the injured member in the courtroom is to have another exhibition of it for its benefit. If the insurer wishes a more extensive type of éxamination the statute specifically empowers the court to order it at a reasonable time and place, with both parties to the suit having the right to be represented at such examination by physicians of their own selection.
When petitioner in this case demanded to have respondent’s foot manually manipulated by its physician, respondent’s counsel agreed to the examination provided it was made in keeping with the statute, out of the presence of the jury, and with respondent having the right to have a physician of his own choice present at such examination. The law certainly clothed the court with power to order the examination in keeping with the statute, and petitioner could not, as a matter of right, demand more. The same statute which has taken from the injured workman his common law immunity from involuntary examination has marked out in certain respects the manner in which that examination shall be conducted, and has entrusted to the discretion of the Industrial Accident Board and of the courts the duty of fixing the time and place of the examination. The very witness involved had twice before examined the respondent, the first time two days after the accident and the last about a month be *214 fore the trial. The record indicates that even a third examination might have been had in keeping with the terms of the statute but petitioner insisted on its right to have the doctor “exhibit to the jury and demonstrate the motion and lack of motion and limitation, if any” in the foot. Neither the statute nor the rules of common law required that the demand be granted.
From the standpoint of the practical effect of our ruling on petitioner’s second point of error the importance of the matter hardly justifies the length of this opinion. The inherent risk and danger to the defendant from experimenting with the plaintiff’s injured parts in the presence of the jury will likely make the demand for that right rare indeed. On the other hand, the radical departure made by the majority holding from the settled rules of law applicable to such demands justifies, in part at least, this review of the nature of the problem involved.
Petitioner’s second point of error ought to be overruled.
Opinion delivered February 11, 1953.
Associate Justice Smedley joins in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653504. Public record. Not legal advice.