# Texas Employers' Ins. Ass'n v. Downing > Court of Appeals of Texas · November 26, 1919 · 218 S.W. 112 URL: https://www.frixlaw.com/law-library/cases/9829376 ## Case - **Full name:** Texas Employers' Ins. Ass'n v. Downing. - **Court:** Court of Appeals of Texas - **Decided:** November 26, 1919 - **Citations:** 218 S.W. 112; 1919 Tex. App. LEXIS 1342 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Boyce - **Cited by:** 87 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9829376 ## Opinion text On Motion for Rehearing. [19] Appellee, in his motion for rehearing, calls our attention to the fact that the proceedings of the trial court, in respect to the motion to require a physical examination of the plaintiff, are not embodied in a formal bill of exceptions, but are preserved in the record only by the motion itself and order overruling it, which recites therein an exception on the part of the defendant, copied separately in the transcript, the statement of the evidence heard on the motion appearing in the statement of facts. Appellee now asserts that we were without authority to consider the assignment because of the absence of a bill of exceptions, as required by the rules. If this objection to the consideration of the assignment had been presented at the proper time, we would have felt bound to have sustained it. Rules 53, 54, and 55 ( 142 S. W. xxi ) for the District and County Courts; Weatherford M. W., etc., Ry. Co. v. Smith, 170 S. W. 133 ; Panhandle, etc., Ry. Co. v. Kirby, 108 S. W. 498 ; Dixon v. Cooper, 178 S. W. 695 ; Paris, etc., Ry. Co. v. Boston, 142 S. W. 944 . [20] The case was fully briefed by both parties, and was orally argued on original submission, and no, such objection to the consideration of the assignment was then urged by appellee. The appellant, in the statement under the assignment, copied the motion in full, referred to the evidence introduced on its hearing, and stated that the court overruled the motion, and that appellant duly excepted to such action. The statement also referred to other proceedings had which were thought to have a bearing on the propriety of the action of the court on the motion. We think we were justified in considering, the assignment on the uncontested statement made by appellant, and that it is now too late for appellee to urge this objection. Rules 40 and 41 ( 142 S. W. xiv ) for the Courts of Civil Appeals; Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S. W. 1149, opinion on motion for rehearing (writ of error was refused in this case); Taylor v. First State Bank, 178 S. W. 38 , opinion on motion for rehearing. [21] Most of the propositions now urged by appellee in the motion for rehearing in support of the action of the trial court in overruling the motion are different from those contained in appellee’s original reply to this assignmént, and we will notice these briefly. The first proposition now urged is that where the evidence was conflicting as to whether the examination would assist the jury, the court had the right to decide the conflict. There was no conflict in the evidence on the hearing of the motion. It is true that one physician on the subsequent trial of the case gave it as his opinion that an X-ray examination would not be helpful in clearing up the controversy as to the injury to the spinal column, but throughout the trial all the physicians agreed that an examination by a specialist was necessary to ascertain the extent ahd cause of the alleged injury to the sight and hearing. [22, 23] It is also now asserted that the time for making the examination was not reasonable, and would have delayed the trial of the cause. The record does not support this statement, nor does it show that the examination was resisted for such reason. Ap-pellee asserts that after the denial of this motion the case was continued on the application of the defendant. The record does not show this to be a fact. The bill of costs, which is the only record showing any continuance, shows that the case was continued once by the defendant and once by the plain *123 tiff, the dates of the respective continuances not being shown. [24] It is further asserted that the examination should have been refused because the appellant had already had the appellee examined under order of the Industrial Board. The examination made at the request of the Industrial Board was made before the filing of this suit. At that time the claim of the plaintiff for compensation was pending before the Accident Board, and the nature of his injuries was stated in such claim as follows: “His ribs were bent or broken, his right lung crushed and bruised, and a broken rib punctured said lung. His back and kidneys were injured, and there were other internal injuries, the names of which are not known to th'e said Downing.” No claim was made before the filing of the suit apparently for injury to the sight and hearing. When the suit was filed, and it was then ascertained that the plaintiff claimed an injury to his sight and hearing, and it became known that one of the physicians would testify that he had a curvature of the spine, such facts we think afforded reasonable grounds for a request for further examination as to such matters. [25] It is also now urged that the motion should have been that plaintiff be refused compensation until he should submit to examination. Such motion would harness the cart before the horse. R. S, 1918 (Vernon’s Supp.) art. 5246 — 42. [26] But if we are mistaken in our conclusion that it is now too late for appellee to urge the objection to the consideration of the first assignment, we think, in any event, the. ease should be reversed on the eleventh assignment. We would not reverse the case on account of the errors which we held to be shown by the fifth, sixth, seventh, and eighth assignments, because on the whole record it does not appear to us that these erroneous rulings probably resulted in any harm. [27] In view of the new position which ap-pellee takes with reference to the eleventh assignment, we deem a further, statement, in addition to the statement in our original opinion, considering this assignment, necessary. The plaintiff,\ in support of his allegation in the petition that he had made his claim to the Industrial Accident Board, that it had made an award, and that the plaintiff had given notice of his unwillingness to abide by the same, attached copies of such proceedings as exhibits to his petition. The defendant took no exception to this action. In the progress of the trial plaintiff offered in evidence a certified copy of the award. We copy the following from the bill of exception, which shows the further proceedings which then took place: “To the introduction of this evidence [the award] as proof of any of the facts therein recited or for any other purpose than as proof of the fact that a final ruling and decision of the Industrial Accident Board had been made, the said defendant, by its counsel, objected, upon the ground that the plaintiff, Thomas Downing, having given due and proper notice that he was unwilling and did not consent to abide by said final ruling and decision, and having instituted this suit to set aside said final ruling and decision, and the proceedings herein being de novo, any recital of fact contained in' said final ruling and decision could not be legal evidence or proof of said facts, and should not be permitted to go to the jury 'as proof of said facts. To this objection Judge Barrett, counsel for plaintiff, replied: ‘Well, if that was so — if that was a fact — it would be no account, your honor.’ Whereupon the court overruled the said defendant’s objection, with the remark: ‘Well, I will admit it in evidence for whatever it proves.’ And to this action of the court in so overruling the said defendant’s objection and in permitting the plaintiff to read in evidence the final award and decision of said Industrial Accident Board, with the remark above' quoted, the defendant by its counsel then and there excepted,” etc. This bill was approved with the following qualification: “The copy of the award of the Industrial Accident Board was admitted in evidence over the objection of defendant, with this statement: ‘Well, I will admit it in evidence for whatever it proves.’ The’defendant did not object to the same as to the fact that the award was made, but objected to the admission of the copy in evidence as proof of any of the facts stated in the award, which objection being overruled, defendant duly excepted thereto. Thereupon Judge Barrett, attorney for plaintiff, stated: ‘Well, I read that to the jury. It is attached to the copy of the petition, and we will waive the reading of it. Copy of said award is dated the 18th day of September, 1918.’ It was not then read to the jury, and was not thereafter read to the juiw so far as my recollection goes. I do not remember of it having been read to the jury in the reading of the plaintiff’s petition referred to in the argument, and I do not know as a fact that the jury ever read it or heard it read.” It is true that the party offering an objection to the intrdduction of evidence that is admissible for any purpose, before he can complain, should ordinarily request an instruction limiting the consideration of the evidence. H. & T. C. Ry. Co. v. Poole, 63 Tex. 246 . The effect of the objection as it was made was a request for the limitation of the testimony, and the ruling of the court., under the circumstances, was an overruling of defendant’s contention that the award was admissible only for limited purposes, and the statement of the court, made in overruling the objection, was equivalent to an instruction to the jury that they might consider the evidence for all purposes. Under these circumstances it was not necessary for appellant to make a formal motion to limit the evidence *124 before he could complain of .the action of the ?ourt. [28, 29] The fact that the award was not read at the time it was offered was not material, we think. It was presumably read when the petition was read; plaintiffs attorney so stated when he offered it, and it was presumably in the hands of the jury as an exhibit to the petition in their retirement. It appears in the statement of facts as having been introduced in evidence. As we havfe already seen, the evidence was sharply conflicting as to the extent of the plaintiff’s injuries, and. the jury were, evidently in doubt as to the truth of the matter. Under the circumstances we cannot say that the admission in evidence of the finding of the Industrial Accident Board, to the effect that the injury had resulted in “total incapacity,” etc., might not have had a deciding effect on the jury, and cannot say that the error is harmless. Commonwealth Bonding & Casualty Co. v. Hendricks, 168 S. W. 1010 , opinion on motion for rehearing. [30] Appellant, in its answer to the ap-pellee’s motion for rehearing, takes issue with our conclusion that it was improper to submit the case on the theory that plaintiff must recover in a lump sum for total incapacity, or take nothing, and contends that the pleading is insufficient to award any other relief than recovery in a lump sum. The plaintiff pleaded the accident and resultant injuries, from which it was concluded that he had suffered total and permanent incapacity. I-Ie also pleaded the amount of his average weekly wage, and other facts which he claimed were sufficient to require payment of the compensation in a lump sum instead of in weekly payments. All these allegations are followed with a prayer for recovery in a lump sum, and for general relief. The statement of the injuries, the incapacity, and the weekly wage plaintiff was theretofore earning embraced all the essential elements of a good cause of action, and it was not necessary that the proper measure, or any measure of damages, be stated in order to warrant a recovery. St. Louis & Southwestern Ry. Co. y. Jenkins, 89 S. W. 1106 .; Ara y. Ruthland, 172 S. W. 993 . The fact that the plaintiff may have overestimated the extent of the injury or his resultant incapacity, or the amount of his average weekly wage, would not prevent the court or jury from awarding such compensation, as the facts proven would, under the law, entitle him to; nor would the fact that he sought to have a commutation of the damages to a lump sum prevent the court from applying the prescribed measure of damages applicable to all but exceptional cases, in the event plaintiff failed to bring himself within the exception. As may readily be seen, the true justice of the case might be impossible of application if the jury in such case be forced to the alternative of awarding compensation in a lump sum or nothing. The motion for rehearing will be overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9829376. Public record. Not legal advice.