author: GRISSOM, Justice. FUNDERBURK, Justice

text:
    TEXAS COCA-COLA BOTTLING CO. v. LOVEJOY.
    No. 1971.
    Court of Civil Appeals of Texas. Eastland.
    March 1, 1940.
    Rehearing Denied March 29, 1940.

      Wagstaff, Harwell, Wagstaff & Douthit,, of Abilene, and Thos. R. Smith, of Colorado City, for appellant.
    Beall, Beall & Yonge, of Sweetwater, and Chas. C. Thompson, of Colorado City,, for appellee.
   GRISSOM, Justice.

R. B. Lovejoy instituted this suit against Texas Coca-Cola Bottling Company to recover damages alleged to have been sustained as the result of his wife drinking glass from.a bottle of coca-cola bottled by the defendant.

This is the second appeal of this case. The opinion on the former appeal may be found in Tex.Civ.App., 112 S.W.2d 203.

In answer to special issues submitted the jury found (1) that the bottle of coca-cola from which Mrs. Lovejoy drank contained particles of broken glass. (2) That Mrs. Lovejoy swallowed particles of broken glass in drinking said bottle of coca-cola; (3) that Mrs.-Lovejoy was injured as a result of swallowing glass contained in said bottle of coca-cola. (4) That the defendant delivered the bottle of coca-cola from which Mrs. Lovejoy drank the glass to Hicks Rubber Company; (5) that the glass was in the bottle at the time it was so delivered; (6) that the defendant was negligent in delivering the bottle of coca-cola with glass in it; (7) that such negligence- of the defendant was a proximate cause of the injury sustained by Mrs. Lovejoy. (8) That the bottle of coca-cola from which Mrs. Lovejoy drank contained particles of broken glass when it left defendant’s bottling plant; (9) that the defendant failed to discover such broken glass in the bottle of coca-cola before permitting it to leave its bottling plant; (10) that such failure was negligence; (11) that such negligence was a proximate cause of Mrs. Lovejoy’s injuries; (12) that $15,000 if paid now in cash would adequately reimburse plaintiff for the injuries sustained as the result of swallowing glass from the bottle of coca-cola. (13) That it was necessary for plaintiff to incur doctor’s hospital and medical bills as the result of injuries so sustained; (14) that $125 would reimburse plaintiff for reasonable doctor’s hospital and medical bills incurred as a result of such injuries. (15) That the physical suffering of Mrs. Lovejoy since October, 1934, is not due solely to a diseased condition of her body in no way connected with swallowing glass. The court rendered judgment upon said verdict for the plaintiff for the sum of $15,125. The defendant has appealed.

By its fourth and fifth. assignments o'f error, defendant contends the judgment should be reversed because defendant’s witness, Mrs. Selby, on cross examination, testified that she thought Mr. Merrill was in the insurance business. Defendant con-, tends that such testimony informed, or was calculated to impress the jury with the view, that defendant carried indemnity insurance, and that any judgment rendered would be paid by the defendant’s insurance carrier, and, therefore, the trial court erred in not declaring a mistrial and discharging the jury. The situation surrounding the introduction of said testimony and the action of the court and counsel relative thereto are disclosed by the statement of facts as follows:

“Who was it first talked to you about this case? A. I don’t know.
“Q. Nobody ever has talked to you about it? A. No, nobody has told me what to say.
“Q. I want to know—
“Mr. Harwell: We admit we had the witnesses gathered, your honor;
“Mr. Beall: I want to know who talked to you about the case.
“A..No one talked to me about the case.
“Q. Not a soul? A. No.
“Q. How did you know you were going to come up here and testify? A. Mr. Merrill asked me if I would.
“Q. Who is Mr. Merrill? A. I don’t know.
“Mr. Douthit: He is from Abilene. Mr. Merrill was making an investigation at our request.
“Mr. Beall: Q. Mr. Merrill comes out to your place and dances? A. He has been there, yes sir.
“Q. Isn’t he from Abilene, Texas? A. I don’t know.
“Mr. Douthit: Yes, he is from Abilene, Texas.
“Mr. Beall: Q. Did he agree to pay you for coming up here? A. He did not, only my expenses.
“Q. How much did he agree to pay you? A. Not any certain amount.
“Q. You just voluntarily came up here to testify? A. Yes sir.
******
“Q. Do' you know what business Mr. Merrill is in? A. I■ think he is in the insurance business.
“Q. Isn’t he a detective, too?
“Mr. Douthit: Counsel has gone over that repeatedly and we ask that the jury be retired a minute; we want to make a motion to the court.
“The Court: I believe it will be better for us to retire from the jury.
(Whereupon the court and counsel retired out of the court room, out of the presence and hearing of the jury, and the following proceedings were had:)
“Mr. Douthit: Be it remembered that on this 10th day of November—
“The Court: Are you moving to declare a mistrial?
“Mr. Douthit: Yes sir, we have got to preserve the record. (To Mr. Beall) We tried to keep you from bringing in the question of insurance, but you have ripped your pants now.
“The Court: I am going to overrule it.
“Mr. Douthit: Be it remembered that on this the 10th day of November, 1938, while the witness Mrs. Selby was on the stand testifying in behalf of the defendant, and
“Be it further remembered that while said witness was testifying on cross examination by Mr. James Henry Beall Jr. she was requested to answer a question as to who had talked to her about the case and the witness replied that Mr. Merrill had talked to her about the case, and thereupon counsel for the defendant questioned said witness relative to who Mr. Merrill was on several different occasions, and counsel for the defendant having admitted that Mr. Merrill was sent down to San Angelo to get defendant’s various witnesses together, and that the said Mr. Merrill was sent there at the special instance of the defendant, and
“Be it further remembered that Mr. James Henry Beall, Jr., asked the witness as to who Mr. Merrill was and where he lived, and
“Be it further remembered that the said counsel further insisted on the witness telling what Mr. Merrill’s business was, whereupon said witness ■ answered that he was in the insurance business, and
“Be it further remembered that counsel for defendant advised the court at such time that the question of insurance had been injected into the case and thereupon requested the court to declare a mistrial and discharge the jury:
“The Court: In your bill of exception' the thing that will control in there is the questions asked arid the answers ■ of- thej witness and not what you stated, because he! didn’t ask what this man’s business was,! she volunteered that information'. ⅝
“Mr. Harwell: Wait just a minute—

(Whereupon Mr. Harwell called some of the parties off to one side for a conference, after which he made the ■ following statement:)

“Mr. Harwell: I would like to.suggest, if I may do it, that I take her now and ask her whether she knows whether' he is a detective or what he is, to eliminate any question about that if I can. If we can— this case is too long and hard and I am not anxious to try it over again.
“Mr. Beall: I am willing for you to do that.

(Whereupon the court and counsel went back into the court room and the following proceedings were had in' the presence of the jury)

“Mr. Harwell: Q. Now, Mrs. Selby, you have been asked some questions here —as a matter of fact you don’t know whether S. M. Merrill - is a detective or what his actual business is? A. I certainly do not.
“Q. And any statement that you may have made there or may have been drawn out, that would not be based on any knowledge at all? A. None whatever.
“Q. And you have got no way of knowing that he is a detective? A. Certainly not.
. “Mr. Harwell: Now, for the purpose of. the record, to clear that up, we don’t mind admitting in open court that Mr. S. M. Merrill investigates different cases and that he was investigating this case at our ■ request in locating any witnesses he could for the defense, and he was down there at our request and got these witnesses and we expect to pay them whatever is reasonable and fair.
“The Court: All fight.
“Mr. Harwell: Is that sufficient ?
“Mr. Beall: Yes sir, we agree to that.”-

The general rule laid down in an opinion by Justice Critz in Page v. Thomias, 123 Tex. 368, 71 S.W.2d 234, to the effect that, in .such a case, as this, the introduction by the plaintiff of testimony which, informs the jury that defendant carried indemnity insurance constitutes reversible error, is recognized. The general rule, and an exception thereto, is stated by Judge Hickman in Finck Cigar Co. v. Campbell, Tex.Com.App., 133 S.W.2d 759, 761, as follows:

. "It is a well settled rule in this jurisdiction that, it is. error to inform the jury that the defendant in- an action for damages for personal injuries is protected by indemnity insurance. Page v. Thomas, 123 Tex. 368, 71 S.W.2d 234; Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326; Texas Power & Light Co. v. Stone, Tex.Civ.App., 84 S.W.2d 738, error refused. But that rule has no application when the defendant, . or one of his witnesses, voluntarily brings such information to thé jury, and it is not brought through any fault of the plaintiff or his attorneys. Carter-Mullaly Transfer Co. v. Bustos, Tex.Civ.App., 187 S.W. 396, error refused; Red Star Coaches Inc. v. Lamb, Tex.Civ.App., 41 S.W.2d 523, error dismissed; Williams et al. v. Long, Tex.Civ.App., 106 S.W.2d 378, error dismissed; 33 Tex.Jur. p. 278. As observed in the Carter-Mullaly case first above cited, were this exception to the general rule not recognized, the defendant would have it within his power to bring about a mistrial in all cases and the plaintiff would be unable to guard against it.
“The instant case comes well within the exception to the general rule. The matter about which the interrogatories were directed to the witness was a proper subject for cross-examination. There is not the slightest suggestion by the record that the attorney conducting the cross-examination overstepped the bounds of proper cross-examination. He propounded no question to which the answer gi-ven by the witness -was responsive. We hold, therefore, that it was not reversible error for the trial- court to -overrule the motion to declare a mistrial.”

That .the mere mention of insurance does not constitute reversible error is clearly shown by the decisions of our Supreme Court in Russell v. Martin, 121 Tex. 488, 49 S.W.2d 699, 701, and Horton v. Benson, Tex.Com.App., 277 S.W. 1050, 1051, expressly approving the holding of the Court of Civil Appeals in Horton v. Benson, Tex.Civ.App., 266 S.W. 213, 218. Also, see Russell v. Bailey, Tex.Civ.App., 290 S.W. 1108, 1109, writ dismissed; Jimmie Guest Motor Co. v. Olcott, Tex.Civ.App., 26 S.W.2d 373, writ dismissed, and Texas Cities Gas Co. v. Ellis, Tex.Civ.App., 63 S.W.2d 717.

As shown by the statement of facts the question asked the witness was, “Do you know what business Mr. Merrill is in?” .. The answer, “I.think he is in the insurance .business,” was not responsive , to the question asked. Clearly, the witness was called upon to answer either “yes” or “no.” That is, that she did,, or did not, kpow what business Mr. Merrill was in. We think it reasonably clear that said witness for the defendant volunteered the information .that she thought Mr. Merrill was in the insurance business, and. that such answer was not, at least, directly-responsive ■ to the question . propounded. by plaintiff’s counsel. We are of the opinion that the exception to the general rule above quoted is applicable to the present situation. However, we are further of the opinion that the foregoing quotation from the statement of facts, showing merely a statement of defendant’s witness that she thought Mr. Merrill was in the insurance business, taken in connection with her statement that she had no information, or knowledge, as to what .business Mr. Merrill was in; that she did not know whether he was, a detective or what his business was; was not calculated either to inform the jury, or give it the impression, that defendant was protected by indemnity insurance. Merrill’s connection with defendant is not shown further than that he was directed by defendant’s counsel to “gather” defendant’s witnesses for the trial. But there are other reasons why we think said assignments must be overruled. No objection was made to either the question or answer complained of. As we understand the record, no motion for the court to declare a mistrial and discharge the jury was ever actually presented to the trial court for his action thereon. But, if we should be mistaken with reference to the last-mentioned matter, no exception to. the- action of the court in overruling such a motion, if it were presented and overruled, is revealed by the record. We think a fair interpretation of the record is that during the dictation by one of defendant’s counsel of a motion for the court to declare a mistrial and discharge the jury, the court stated he was going to overrule such a motion that the court pointed out to defendant’s counsel dictating said motion that plaintiff’s counsel had not insisted that said witness tell what business Mr. Merrill was in, but had only inquired whether she knew what business Mr. Merrill was in; that said witness’ answer was not responsive to the question asked; that defendant’s witness had volunteered such information, and, thereupon, upon the suggestion of another of defendant’s counsel, and after a conference, defendant concluded said motion ■ was prob-. ably not good, and, we think, very properly, concluded it- would be- advisable and desirable to cure -the supposed error if possible and not to present such a motion to the court for his action thereon but to proceed with the- trial of the case in an effort to obtain a final adjudication of the case on its merits. For the reasons stated, we conclude defendant waived its dictated motion for the court to declare a mistrial and discharge the jury. Therefore, we think said assignments must be and they are overruled.

That an objection to such testimony and an exception to the ruling of the court thereon are required is shown by the following authorities: Collins v. Panhandle Nat. Bank, 75 Tex. 254, 11 S.W. 1053; Johnson v. Hodges, Tex.Civ.App., 121 S.W.2d 371, 374; Texas Emp. Ins. Ass’n v. Hitt, Tex.Civ.App., 125 S.W.2d 323, 328; Foley v. Houston, B. & T. Ry. Co., 50 Tex.Civ.App. 218, 110 S.W. 96, 98; Galveston, H. & S. A. Ry. Co. v. Grenig, Tex.Civ.App., 142 S.W. 135, 140, writ refused; Simpson v. Whitesboro Nat. Bank, Tex.Civ.App., 120 S.W.2d 462, 463; Abshier v. Reavis, Tex.Civ.App., 54 S.W.2d 1102, 1104; Traders’ & General Ins. Co. v. Bulis, Tex.Civ.App., 75 S.W.2d 965, 967; Standard Acc. Ins. Co. v. Williams, Tex.Com.App., 14 S.W.2d 1015, 1017; Wheeler v. Tyler S. E. Ry. Co., 91 Tex. 356, 359, 43 S.W. 876 ; 3 Tex.Jur. 188 et seq.; Dist. & County Court Rule 56, et seq.; Art. 2237, R.S.1925, as amended 1939 (Vernon’s Ann. Civ. St. art. 2237); Texas & P. Ry. Co. v. Hilgartner, Tex.Civ.App., 149 S.W. 1091; Texas Law of Evidence (McCormick & Ray) p. 24; Sulser v. Caraway, Tex.Civ.App., 134 S.W.2d 426, 427.

With reference to the health of Mrs. Lovejoy prior to the time that it is alleged she swallowed glass while drinking a bottle of coca-cola bottled by defendant, plaintiff, R. B. Lovejoy, testified as follows :

“Q. I want to ask you, Mr. Lovejoy, * * * prior. to October 6, 1934, your wife had had some operations, hadn’t she? A. Yes sir.
“Q. Do you know when those operations were had and what they were for? A. Well, the first one was in 1916 for' appendicitis.
“Q. And the second was— A. The second was in 1925.
“Q. Where was that operation? A. Amarillo.
“Q. Do you know the extent of that operation — were you present at the time? A. Yes sir.
“Q. They just went in and operated— when they opened up the incision they found she was pregnant and they closed it back up? A. That is all.
“Q. What was that operation for? A. Dr. Root thought she had some kind of female trouble.
“Q. Later on did she have an operation ? A. In 1929.
“Q. What was that operation for? A. Tumor. •
“Q. Something connected with the female organs? A. Yes sir.
“Q. That was removed in 1929? A. Yes sir.
“Q. After 1929 — up to that time had your wife been what you would consider an unhealthy woman? A.. Yes sir — she never complained only at times \yith that trouble with her female organs.
“Q. After that operation was performed in 1929 I want, you to tell the jury whether or not. your wife recovered from that operation? A. Yes sir. , .
.“Q. From 1929 until 1934, tell the jury what kind of physical condition your wife was in? A. Well, she was in as good physical condition as I ever saw her and she was always able to eat what she wanted- and go where she could and wanted to and to do any kind of work.
“Q. During any of these operations— were any of the operations for stomach trouble? A. No sir.
“Q. Had she ever had any trouble with her stomach that you knew anything about? A. No sir, not at all.”

Mrs. Lovejoy and other witnesses for the plaintiff testified, in effect, that for some time prior to and at the time she swallowed the glass she was, or appeared to be, in perfect health. The court submitted to the jury special issue No. 15: “Do you find from a preponderance of the evidence that the physical suffering, if any, that Mrs. Lovejoy has had- since October 6, 1934,’ is due solely to a diseased condition of - her body that is in no' way connected with the swallowing, if any, of particles of glass? Answer Yes or No.”

The jury answered, “No.”

The court also submitted to the .jury special issue No. 12, as follows: “What amount of money, if any, do you find from a preponderance of the evidence, if paid now' in cash, would adequately reimburse the plaintiff for such injuries, if any, sustained by Mrs. Lovejoy as the result, 'if any, of swallowing particles of glass, if she did, from said bottle of coca-cola ?. Answer in dollar and cents, if any.” ‘ ,

The jury answered “$15,000.00.” .

In connection with -special issue No. 12, the court instructed the jury as follows: “In answering the foregoing issue, you may take into consideration such diminished capacity,-if any, sustained by Mrs. Lovejoy to look after the ordinary duties of a house-wife and to care for and look after the family of the plaintiff, and such pain and suffering, if any, that she may have suffered since October' 6, 1934, up to date, as the proximate result of such injuries, if any, sustained by her in swallowing, if she did, particles of glass from the bottle of coca-cola in question.”

The defendant objected to Special Issue No". 12 and the instructions relative thereto, as follows: “The defendant further objects and excepts to the submission of Special Issue No. 12, and the instruction given to the jury thereunder, because the evidence raises the issue that a part of the plaintiff’s wife’s physical and mental pain and suffering, if any, were attributable to prior operations and other existing infirmities of her body which had no connection with the swallowing of glass and the court should instruct the jury in connection with said special issue 12 not to consider nor allow anything for physical pain and suffering, her mental pain and suffering, or loss of earning capacity in the past or future attributable to such previous infirmities of her body which were attributable directly to such previous operations and other physical infirmities that plaintiff’s wife had, which was not aggravated by the ingestion of the glass in question.”

Defendant, by its sixth assignment of error and propositions thereunder, contends the action of the court in overruling its objection to the instructions following special issue 12, and in failing to instruct the jury that in arriving at the amount of damages to be awarded plaintiff it could not consider or allow any recovery for pain and suffering, or loss of earning capacity, caused by infirmities of her body existing at the time she swallowed glass (except such pain, etc., as may have resulted from an aggravation of her prior infirmity by swallowing glass).

Plaintiff relies upon the case of Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, 685. Defendant’s objections to the instructions given in connection with issue 12 were practically identical with the objections made to the instructions in the Ector case. Following the rule announced by the Supreme Court in the Ector case, it is our duty to reverse the'judgment if the evidence raised the issue as to whether or not a part of Mrs.-Lovejoy’s suffering or incapacity in evidence was .caused by her condition prior to swallowing glass. In the Ector case the Supreme Court gaid relative to said question: “The railway company offered testimony to the. effect that Mrs. Ector had been suffering from some prior kidney disorders and that a part of the injuries which she received, if any, were but an aggravation of her prior kidney .trouble. The fact of the existence of prior kidney trouble was denied by Mrs. Ector and her witnesses. It thus appears that an issue of fact was sharply presented as to whether Mrs. Ector was suffering from a kidney trouble prior to and at the time of the collision and as to whether or not a part of her suffering was attributable to a prior condition of her kidneys.”

In Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074, 1075, writ refused, in considering the same question, this court said: “The evidence presents a situation where appellee was suffering from an infirmity before any of the alleged acts of negligence were committed by appellants.”

In the instant case the existence of any infirmity or ill effects from the three operations suffered by Mrs. Lovejoy prior to swallowing the glass was denied by her.’' But defendant points to the following testi-' mony as raising an issue of fact as to whether or not, at the time Mrs. Lovejoy swallowed the glass, she was suffering from the effects of such operations, and as to whether or not a part of her suffering and incapacity, described on the trial of the case, was attributable alone to the prior condition of her nervous system and body. Dr. Root, on cross-examination, testified:

“Q. I will ask you one assumption question right here. Assuming that a woman has had three major abdominal operations, is she in all reasonable probability what you would call a normal healthy person? A. A woman who has had three major abdominal operations would be mighty apt to be a nervous woman.
“Q. That very contraction down there you spoke of at the pyloric opening awhile ago. was a sign of nervous tension of some kind? A. Well, according to my X-ray findings, it was.
“Q. That is what you found from your X-ray, is that correct, Doctor? A. Yes sir.
“Q. If a woman .was a normal healthy woman, and she did take glass into • her stomach, and assuming it did cut a place on the stomach wall, aren’t the .reasonable probabilities that she would have recovered immediately if it passed oüt within nine days? A- Well, a small cut on the — it would depend ón how deep the cut was, but a small cut and the glass passed on it would be more apt -to heal "than give serious trouble, but if the glass remainéd in the cut— .
“Q. If it passed out within nine days your testimony is it should have ’ healed ? A. Yes sir, I think s.o. ■ ■
“Q. Isn’t it true, if it passed out within' the nine' days ánd has not healed yet, isn’t that a strong indication to you as a doctor that that woman’s stomach was not- a normal healthy stomach? A. Well, it might not, particularly being a woman’s stomach, often a healthy stomach — I will say this, ulcers-of the stomach cause — it is the common accepted theory — caused by some lesion, something that goes wrong in the stomach and something to keep that ulcer going, and to grow larger, one of the things that would do that is the hydrochloric acid which is constantly burning it, another would be this wave we were just talking about, instead of being a gentle wave, it could be a violent and rather vicious wave, a violent and rather vicious wave coming down to interfere with the healing, another would he spastic condition at the pyloric opening, which this woman certainly has. That spastic condition means the stomach doesn’t empty good. Now a person getting a cut of the mucus membrane of the stomach — one thing you will always have is that hydrochloric acid that is coming in the stomach, most of the time it will get well if not perpetuated because of the hydrochloric acid.
“Q. In other words, there must be something there in addition to that cut that is tending toward an ulcer, otherwise in all reasonable probability it should heal? A. Sometimes a cut in the stomach, if it perforates the stomach, cuts through the stomach, you are certainly going to have some trouble.
“Q. That is where it goes clear through the stomach? A. Yes sir.
* * * * * *
“Q. Now, that spastic condition you spoke of at the pyloric opening, does that necessarily mean there was an ulcer there? A. No.
“Q. What are other things that might have caused that definite spastic thickening you spoke of? A. Appendicitis will cause' it, inflammation of the gall bladder will cause it, inflammation of the lower gut— sometimes just general nervousness will cause it. ■
“Q. General nervousness will cause it? A. Yes sir.
“Q. Isn’t it true that if a woman has had. three major abdominal operations, and one of such operations found her pregnant and she was sewed back up and in a few months afterwards a child was born, doesn’t that indicate that that would probably cause her to be a nervous woman? A. Yes, that would cause nervousness.
“Q. And would cause her probably to be a nervous woman ? A. Probably, I couldn’t say definitely, probably a woman that has had that would be a nervous woman.
“Q. Would probably be what we call a neurotic? A. Probably.
*****
“Q. Isn’t it true, assuming this lady was a normal healthy person on October 6, 1934, and that she swallowed the piece of glass alleged here and passed it at the end of nine days isn’t it true that the reasonable probabilities are that there never would have been any serious effects from it?- A.. If she was a normal healthy person — it is-true that a vast percentage would be that way, but to say that one out of a great number might suffer, I couldn’t say defi-: nitely that that would be true.
“Q. But the reasonable probabilities are if she was a normal healthy person it should have healed up? A. Yes, there might be a possibility that it might not but if you take normal healthy robust people, with nothing in the world wrong or the matter with them, you would expect it to heal.
. “Q. It is reasonably probable it would heal? A. Yes, if it was normal it is probable it would heal.
“Q. Isn’t it true, taking into consideration the swallowing of all kinds of hard objects, pins, staples and everything else, not more than one per cent of all ulcers are caused by swallowing any -such -substances? A. That is true. ; . •
* ⅜ * * ¾: *
“Q. And you also testified that the* reasonable probabilities are that this lady, frojn the history of those operations. that have been detailed to you, .she wouldn’t have probably been a healthy woman? A., She is probably a nervous woman.
“Q. And the reasonable probabilities are she wouldn’t be what we call a normal-healthy person ? A. Would be nervous — .
“Q. Would she be a reasonably healthy person ? . A. No, I would say she would be-abnormally nervous.”
Dr. Lee on cross-examination 'testified:
“Q. Now, Doctor, if she had had three major abdominal operations prior to that time, one of Which was in 1925 and they found that she was pregnant and sewed her up and she gave birth to' a child a few months afterwards, and then in 1929 an-’ other major abdominal operation,' the reasonable probabilities are she wouldn’t have been a normal healthy person on October 6, 1934? A. I think it is impossible for-any person to go through that, especially a lady, without becoming somewhat neurotic; I wouldn’t regard her as normal, normal means in perfect health.
“Q. Now, on this question of a cut of the stomach wall, if a woman were a normal healthy woman, and a piece of glass such as you have heard described in this case had made an incision there in the mucus membrane, the reasonable probabilities are there would have been no serious. effects from it? It depends on the depth of any injury to the mucus membrane of the stomach as to the results; if it was cut deep enough to go through the mucus membrane entirely it would be difficult for it to heal, but just an ordinary cut in the stomach, the reasonable calculation and reasonable expectation would be that it would heal quickly.
“Q. Should have healed within a few days where the glass passed in nine days? A. Yes. sir.
“Q. • And that is what you would reasonably expect from it ? A. I would.
⅜ ⅝ ⅜ ⅝ ⅝
“Q. That piece of glass passing through a normal healthy stomach wouldn’t be reasonably expected to cut clear through the stomach wall? A. No, not more than one time in a hundred.
* * * * * *
“Q. Isn’t it true that a neurotic person is calculated to have that condition at the pyloric opening? A. Yes sir.
“Q. From general nervousness ? A. Yes sir.' '
“Q. Or neurosis? A. Yes sir, that means a nervous condition or a disturbance of the nervous system.
******
“Q. In all your, experience as a doctor, have you ever known of a condition such as this lady has, unless her condition is due to it, that was due to swallowing glass ’or some other foreign substance? A. Never have.
“Q. And isn’t it true that in all reasonable probabilities, if this lady had swallowed a piece of glass, the piece of glass she said she did swallow, and passed it within nine days, she would have recovered quickly? A. That is the reasonable expectation.
“Q. Now, the assumption is that if she was a normal person she would have recovered from it immediately? A. That is my opinion.”

After giving most careful consideration to such testimony, and other of like import, we are unable to say that an issue was not raised as to the existence in Mrs. Lovejoy of a pre-existing infirmity attributable to said prior operations, which the jury might have believed contributed to pain, suffering and incapacity in evidence. Therefore, under the decision in the Ector case, the court should have affirmatively instructed the jury to exclude such matter from their consideration in assessing plaintiff’s damages. She is not entitled to recover from defendant for pain or incapacity resulting solely from something other than swallowing the glass. The finding in the answer of the jury to issue No. IS (which, if it had been found favorably to defendant, would have constituted a complete defense) that Mrs. Lovejoy’s suffering was not due solely to a diseased condition of her body in no way connected with swallowing glass, does not constitute a cure for the matter here complained of. The jury could have believed that Mrs. Lovejoy was extremely nervous and neurotic as a result of three operations and could have believed that the spastic condition at the pyloric opening, which prevented her stomach from completely emptying, was caused by such things; they could'further have believed that she swallowed glass and that caused an ulcer of the stomach; they could have believed that the suffering and incapacity described on the tria! were caused partly by one and partly by the other. So believing, the jury could properly have answered special issue No. IS, as it did, that Mrs. Lovejoy’s suffering since October 6, 1934, was not due solely to a diseased condition in no way connected with swallowing glass. Nor is it an answer to the complaint made to say that in issue 12 the jury was asked to fix the compensation for. swallowing glass, and in the issue the jury was, in effect, told to fix the compensation for the suffering and incapacity which was a proximate •result of the injuries sustained by her in swallowing glass from the bottle of coca-cola. Under the rules laid down by the Supreme Court, the improper elements must- be expressly excluded. International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 32, 87 S.W. 328; Hines v. Kelley, Tex.Civ.App., 252 S.W. 1033, 1035; Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074, 1075, writ refused.

W'e, therefore, hold that the court erred, in failing to- sustain the .objection to that portion of special issue No.' 12 which instructed the jury what things they might consider in arriving at the. amount of damages to be awarded plaintiff, and hold that the court should have instructed the jury, in connection with the instructions given, in such manner as to expressly exclude from their consideration in awarding damages any suffering, etc., resulting from the. previously existing infirmity of Mrs. -Love-joy (except suffering, etc., resulting from an aggravation of her previous condition by swallowing glass). Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683; Burlington-Rock Island R. Co. v. Ellison, Tex.Civ.App., 134 S.W.2d 306, 307, writ refused; see also, Ft. Worth & D. C. Ry. Co. v. Bozeman, Tex.Civ.App., 135 S.W.2d 275; Morrow v. St. Louis, A. & T. R. Co., 81 Tex. 405, 17 S.W. 44; San Antonio & A. P. R. Co. v. Carpenter, Tex.Civ.App., 13 S.W.2d 929, 932.

In Pedigo & Pedigo v. Croom, supra, a similar issue as to the amount of damages to be awarded plaintiff was submitted. There the instructions accompanying that issue were, so far as is here material, essentially the same as in the present case. The defendants there objected “because said question does not exclude from the consideration of the jury the injury or probable consequence of injury sustained by H. C. Croom and being suffered by him prior to -the time these defendants were engaged' to treat him, and further because said question does not exclude that pain and suffering and loss of earning power past and future which would have been or might have been reasonably expected to be the natural consequence of his original injury.” There this court said: “Error is assigned to the action of the trial court in overruling this exception and objection. The evidence presents a situation where appellee was suffering from an infirmity before any of the alleged acts of negligence were committed by appellants. The most for which appellants could be charged would be the injuries sustained by appellee in addition to those which would have been sustained as a direct result of the broken leg. The injuries flowing from the original accident, and those flowing from the alleged negligence of appellants, were so connected and intermingled that appellants had the right to have the charge affirmatively limit the jury in its consideration to the injuries resulting alone from their negligence and excluding such injuries as were the result of the original accident.” (Italics ours.)

For the sole reason that the court overruled the objection to the instruction accompanying the special issue as to the amount of damages, and did not, in said instruction accompanying said special issue, expressly exclude suffering, etc., resulting from plaintiff’s prior condition, this court reversed that judgment. The Supreme Court refused a writ of error.

Whether some part of Mrs. Love-joy’s suffering or incapacity resulted from her prior condition was not an issue to be submitted to the jury. If such an issue had been submitted and answered, what effect could it possibly have had in the rendition of a judgment? If such improper elements cannot be excluded from consideration in a case submitted on special issues, in the manner directed by the Ecto,r and Pedigo cases, in what mariner are they to be excluded?

While defendant’s riianager was testifying, the defendant asked him: “Q. State whether or not it (meaning the machine that bottled the coca-cola from which Mrs. Lovejoy drank) was the most highly improved machine from the standpoint of bottling a pure, safe coca-cola drink known to the industry at that time.” The question was' objected to as calling for a conclusion and opinion of the witness. The court stated: “If he knows he can answer the question.” Defendant’s counsel then inquired: “Q. Do you know whether it was that type of machine, the most highly improved? A. I would say it was, yes sir.” On cross-examination by plaintiff’s counsel he was asked: “Q. Now you testified that that machine was the most highly improved machine known to bottling science, in your opinion? A. Yes sir, in my opinion, and to the best of my knowledge it was.” After further cross-examination in which the witness testified that said machine was highly approved by the industry from the standpoint of economy, efficiency and safety, in his opinion, he was asked by plaintiff: “Q. Have you seen a machine that employed one man alone to inspect bottles?” To which the defendant objected, “unless he shows it is the same size machine we have here, and shows similar conditions.” Plaintiff’s counsel stated to the court, “He testified in his opinion, and I have a right to cross examine him.” The objection was overruled and the witness answered: “I have never seen a four wide soaker in operation where they used more than one man as an operator and to inspect them; I have seen 12 wide soakers in operation where they .filled a lot more bottles than we do where they used one man to inspect bottles.” Plaintiff’s counsel then asked: “Have you ever seen a machine where they had these bottles inspected under a magnifying glass”, which question was objected to by defendant “on the ground it is not shown to be the same or similar conditions between that which counsel is asking about and the machine actually employed in this case.” The objection was overruled and the witness answered: “I have seen a machine where a magnifying glass was used but I know of no plant using one at present.” The action of the court in overruling the objections to said questions constitute the basis of defendant’s assignments of error Nos. 7 and 8.

The witness having testified for the defendant that in his opinion its machine was the most highly improved machine known to bottling science, we think the court’s action was not error and that it was proper to allow the plaintiff, on cross-examination, considerable latitude to ascertain the accuracy of the knowledge and judgment of the witness upon which the witness' opinion was based. Brown v. Chenoworth, 51 Tex. 469, 478; Texas Law of Evidence by McCormick & Ray, p. 364, 365; Evansich v. Gulf, C. & S. F. Ry. Co., 61 Tex. 24; Denton v. English, Tex.Civ.App., 171 S.W. 248; International & G. N. Ry. Co. v. Dyer, 76 Tex. 156, 13 S.W. 377; Murray v. Morris, Tex.Civ.App., 17 S.W.2d 110, 111; Missouri K. & T. Ry. Co. v. Rich, 51 Tex.Civ.App. 312, 112 S.W. 114, 116.

The cases relied upon by defendant, to-wit, Southern Gas, etc., Co. v. Adams, Tex.Civ.App., 169 S.W. 1143; Texas & P. Ry. Co. v. Cauble, Tex.Civ.App., 168 S.W. 369; Texas & P. Ry. Co. v. Good, Tex.Civ.App., 151 S.W. 617, 619, we think are not applicable.

Also, see Cameron Compress Co. v. Whitington, Tex.Com.App., 280 S.W. 527, 529; Whittington v. Cameron Process Co., Tex.Civ.App., 268 S.W. 216, 221; City of Houston v. Pillot, Tex.Com.App., 105 S.W.2d 870, 872; Id. Tex.Civ.App., 73 S.W.2d 585, 591.

We are of the opinion that the evidence does not raise the issue as to whether the condition from which Mrs. Lovejoy has suffered, or is suffering, is due solely to a mental reaction from knowing, or thinking, she swallowed glass, nor does it raise the issue of unavoidable accident. With reference to the latter' issue our statement in Texas Coca-Cola Bottling Co. v. Wimberley, Tex.Civ.App., 108 S.W.2d 860, 863, is equally applicable here. .Assignments Nos. 9 and 12 are, therefore, overruled.

Since the judgment must, for the reason stated, be reversed, we do not pass on the question as to whether the large judgment rendered is excessive.

The judgment is reversed .and the cause remanded.

FUNDERBURK, Justice

(dissenting).

Negligence of the defendant was by the verdict of the jury found to have been a proximate cause of injuries to Mrs. Lovejoy. The verdict, insofar as its subject matter consisted of the issues which plaintiff had the burden of establishing, contained no description of the injuries. In other words, the particular nature and extent of the injuries do not appear from that part of the verdict.

In addition to the issues which plaintiff had the burden of establishing there were others, one being whether “the physical suffering, if any, that Mrs. Lovejoy has had since October 6, 1934, is due solely to a diseased condition of her body that is in no way connected with the swallowing, if any, of particles of glass.” This issue particularized, wholly or partially, the “injuries” which by other portions of the verdict were found to have been proximately caused by negligence of defendant. The finding that Mrs. Love joy’s physical suffering after swallowing the glass was not due solely to a diseased condition of her body must be regarded as tantamount to a finding that her “injuries” as referred to in the other issues were not due solely to disease. If her “injuries” were not due solely to disease, in no way connected with swallowing the glass, but, as otherwise found, were due to (caused by) swallowing the glass, then what, if any, part of the total consequences of swallowing the glass should be excluded from the total amount to be awarded as damages? There was no evidence of any items of damages resulting from swallowing glass as to which the law does not permit recovery. There was, therefore, nothing to be excluded either in the statement of the special issue or instruction accompanying it.

The principle sought to be applied is not believed to be applicable to the state of facts presented. That principle relates to cases wherein after it is determined that injuries have resulted from negligence as the proximate cause thereof the law will not permit recovery of compensation for some of the results of such injuries. Good examples are death actions in which the policy of the law forbids recovery of damages for mental grief, or suffering, or loss of society, affection or companionship, although they result from the very injury for which the recovery of damages is awarded. Such are the cases of St. Louis S. F. & T. Ry. Co. v. Houze, Tex.Civ.App., 28 S.W.2d 865; Dallas Ry. & T. Co. v. Moore, Tex.Civ.App., 52 S.W.2d 104; Texas & P. Ry. Co. v. Phillips, Tex.Civ.App., 56 S.W.2d 210.

The principle has also been applied in a few cases where the injuries, the damages from which are sought to be recovered, are but a part or phase of certain indisputably existing injuries as to which there is no issue, or as to which because of some policy of the law there exists no right of action. Examples of such cases are Times Pub. Co. v. Ray, Tex.Civ.App., 1 S.W.2d 471; Galbraith-Foxworth Lumber Co. v. Gerneth, Tex.Civ.App., 66 S.W.2d 471; Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074. In such cases there was no question of damages claimed by plaintiff to have resulted from a particular injury for which the defendant was sought to be held responsible and, by way of defense, claimed by the defendant to have resulted from another and different injury for which defendant was not responsible, the issue having been found in favor of the plaintiff. In this case, had the jury been instructed in such way as to meet the objection to the instruction given, the jury could not have excluded anything from the award of damages without disregarding the other part of their verdict to the effect that the “injuries” (not a part of ■ them) were caused by swallowing the glass.

If although .as a whole the injuries were not due solely to pre-existing disease, but as to some ascertainable and definite part thereof, they were due solely to disease (and, therefore, not to swallowing glass) that was, under the decisions, a defensive issue. It was not submitted and not requested to be submitted. It was an issue analogous to the defensive issue of partial, or of temporary, incapacity in a suit by which plaintiff seeks to recover compensation for total and permanent incapacity. There can be no difference in principle between a defensive matter which constitutes a complete defense and a defensive matter which constitutes a pro tanto defense, or, in other words, defense to a definite part of an asserted cause of action or claim to damages. Surely no higher authority for this proposition need be mentioned than those decisions holding that issues of partial incapacity and issues of temporary incapacity as defensive issues are required to be given.

The writer cannot believe the decision in Dallas Ry. & T. Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, 684, should rule the decision of this case. The Ector case, while recognizing the duty of the court, in a case submitted upon special issues, to give. a charge or instruction on the law relating to an issue of (the amount of) damages, no less certainly declares that the only authority therefor is the provision of R.S.1925, Art. 2189, requiring the court to submit “such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict”, etc. It would follow necessarily that if in the statement of an issue of (amount of) damages no legal term was used there would be no necessity for giving a charge or instruction upon the law applicable to such issue. That was. exactly the case before the court. The issue' submitted was stated thus: “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will reasonably compensate the plaintiff for the physical and mental suffering, if any, of his wife, Ethel Ector, in the past, if you find there has been any in the past, and in the future, if you find there will be any in the future, and for her diminished capacity to labor and earn money, in the past, if any, and in the future, if you find there will be any in the future, and for reasonable and necessary expenses heretofore incurred for doctor’s bills, if any, (not including witness fees) resulting directly and proximately from the injuries, if .any, of Ethel Ector?” Regarding this issue, the court, after observing that “The most common form for submitting the question of damages in a personal injury case is for the court to call on the jury to determine plaintiff’s damages and then follow the question with instructions as to the elements properly to be considered in arriving at the damages,” further said: (‘It will be noted that in the instant case the court, adopted a different, and we think preferable, method of submitting the question by embodying the elements in the issue itself * * *(Italics ours.) Thus it appears that according to the preferable method of submitting the issue it was improperly stated, in that it failed to exclude affirmatively improper elements. Regarding this, two or three things may be stated as certainties. It is certain, in the first place, that if the issue had been'objected to on the ground of. its failure to mention and exclude the elements which should have been excluded there would have existed' no necessity for explaining or defining- any legal term, — none such being used in the statement of the issue, — but, even, if there had been, there could have existed no necessity of giving a charge or instruction to exclude items of damages, such exclusion having been effected by the very statement of the issue. In the second place, it is certain that if such an objection had been made and the court had overruled same, the right would have existed to have such action reviewed upon appeal. It is undoubtedly a sound proposition of law that any wrong ruling of a court, not constituting fundamental error, which is not excepted to and not assigned as error, will be waived. Hence there was presented a case of a defectively stated issue, imposing upon the defendant the obligation by objections to point out the defects in order to afford the court the opportunity of correcting them upon penalty for failure to do so of the waiver of the defects. With interest, therefore, we look to the objection that was made. Here is the objection: “Defendant further objects to issue No. S, because the evidence raises the issue that a part of the plaintiff's physical and mental suffering, if any, were attributable to some kidney trouble which had no connection with the accident and the court should instruct the jury in connection with issue No. 5 not to consider nor allow anything for physical £.nd mental suffering or loss of earning capacity in the past because of so much of the kidney trouble, if any, that plaintiff had which was not an aggravation by the accident.” (Italics ours). This objection, it is to be observed, was not directed to any defect in the statement of the special issue. On the contrary, without embodying any such objection, it complained of the failure of the court “to instruct the jury in connection with issue No'. 5 not to consider nor allow”, etc. (Italics' ours.) The objection also set forth the contention that the evidence raised a certain issue, namely, “that a part of plaintiff’s physical and mental suffering, if any, were attributable to some ki,dney trouble which had no connection with the accident.” With this contention the court agreed “that an issue of fact was sharply presented as to whether Mrs. Ector was suffering from a kidney trouble prior to and at the time of the collision and as to whether or not a part of her suffering was attributable to the prior condition of her kidneys.” (Italics ours.) The issue referred to as so raised by the evidence, was not submitted as a special issue. It was undoubtedly a defensive issue. Why then was it not waived? The conclusion of the court to the effect that because such issue was raised by the evidence there was error in not giving the charge or instruction to the jury directing the omission of the particular elements of damage poses an important question'of practice which may be formally stated thus: In the submission of a case upon special issues, may a necessary or proper issue, not otherwise submitted, be, in effect, submitted by means of a purported definition or explanation of a legal term used in the statement of an issue which is submitted; the effect of such explanation or definition being to require a particular answer to the issue submitted accordingly as the jury may find upon the issue not submitted? It is not believed that the Supreme Court by its adoption of the Opinion in the Ector case intended to sanction an affirmative answer to said question; yet, that conclusion would seem to be inescapable if the decision is to be deemed controlling in the instant case. In the case here the evidence raised an issue of fact as to whether all of Mrs. Lovejoy’s injuries and consequent damages resulted from swallowing glass, or from disease, not affected by swallowing glass. The jury in response to an issue submitted found that the injuries did not result solely from the disease. That issue involves a complete defense. If the same evidence, or any other evidence, raised an issue that the injuries, although as a whole, not solely caused from disease, yet, as to some ascertainable part, were solely so caused, was not that just as much an issue for submission, and jury verdict thereon, as the issue involving a complete defense? What difference could there be in the controlling principles, and applicable procedure, between an issue constituting a complete defense to all of an asserted claim and one conr stituting a complete defen.se to a definite part of such asserted claim ? To attempt to recognize any such difference would bring us into inevitable conflict with principles and decisions which it is unreasonable to suppose there has been ,any intention or purpose to repudiate. ... • ,

In the Ector case it was said: “ * * * the difference in the form of submission cannot be made to alter the rights of the defendant to have an affirmative exclusion of improper elements” (of damage). This was said in reference to two different forms of submitting the issue of damages — one said to be the usual way, and the other, the preferable way, (the one employed). Attention has. already been-directed ■ to the self-evident proposition that by the preferable way the necessity of giving a charge or instruction “in connection with” or in addition to, the statement of the issue, would be obviated. The right of review would be fully preserved, to correct any error in the statement of the issue when the court having his attention directed thereto by proper objection had failed to make such correction. Apparently, the view was expressed that although the issue of (the amount of) damages was improperly stated, and had it been properly stated there would have been no necessity for giving in connection with the issue a charge or instruction, and although no objection was made to the improper statement of the issue, but only to the omission of the court to give the charge or instruction, yet nevertheless the court erred because the defendant had a right “to have an affirmative exclusion of improper elements.” Did the court mean to say, in effect, that the right mentioned was not subject to waiver because of non-compliance with the law governing procedure? It seems that upon this point there is internal evidence of inadvertence and mistake. The issue submitted did not contain the word “damages.” It was expressly declared that the only authority for giving a charge of instruction was the authority to give explanations and definitions of legal terms. What legal term was being defined or explained by the charge in question ? It would seem utterly unreasonable to impute the intention of the court to declare that the duty of the trial court in submitting a cause upon special issues to give such explanations and definitions of legal terms as “shall be necessary to enable the jury to properly pass upon and rénder a verdict on such issues” would authorize the giving of a charge or instruction when no legal term was used in the statement of an issue.

Undeniably much confusion and conflict exists in the decisions in this state which have some bearing upon the particular question under consideration. The writer is convinced that it originates in a failure to appreciate inherent differences between the two methods of submitting jury cases — upon a general charge and upon special issues. In submitting a case upon a-general charge the submission of the issues is an inseparable part of the charge or instructions upon the law relating to the issues. The function of the charges or instructions is to inform the jury of the law to the sole end of enabling the jury to apply the law to its' findings, (whatever they may be) upon the issues of fact. When the radically different method of submission' upon special issues is adopted it is inherent in the very nature of such different method that there must be a separation of the issues from the charges or instructions. The issues are required to be so stated that the findings thereon will constitute only findings of fact. After the separation what becomes of the charges and instructions? Why should it be necessary in addition to the submission of the special issues to give such charges or instructions? To say that in any case submitted upon special issues it is necessary to give-a charge or instruction upon the law governing any or all of the special issues is tantamount to a denial of the proposition that the jury under such plan of submission need not, and ought not, to be informed as to the law.

The opinion in the Ector case assumes that the explanations and definitions required by the statute in submissions upon special issues, perform the same, or similar, function as charges or instructions in cases submitted upon a general charge. Do they? The function of an explanation or definition of a legal'term is to enable the jury to understand the meaning of the legal term. ■The function o'f a charge or instruction is to inform the jury of the law in order that the legal effect of their findings of fact, may be truly declared by their general verdict. -How, then; in view of these totally dissimilar functions, can' it ever happen that an explanation or definition of a legal term, in order to be adequate, must consist of, or, at least must include, a charge or instruction upon the law relating to an issue? It is submitted that no such situation can ever arise; and any attempt to do so would be a gratuitous disregard of the basic reason for the method of submitting cases upon special issues in that it unnecessarily introduces the very thing which it is the purpose of that method to avoid.

Suppose in this case, as also in the Ector case, the issue had been stated as was said in the latter to be the usual, although less preferable way, in substance as follows: What do you find from a preponderance of the evidence is the amount of damages, if any, sustained by the plaintiff as the result of her injuries, if any? The legal term requiring explanation or definition, if any, ■ would be the word, “damages.” Webster’s International Dictionary gives the definition of “damages” as. a legal term thus: “The estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a- wrong or injury caused by a violation of a legal right.” There is nothing in this definition concerning the inclusion and exclusion of elements. No explanation or definition of the word “damages” would, in any event, be required unless upon the presumption that the jury did not understand the meaning of the word. Indulging that presumption we may ask, would the instruction which it was held the court erred in not giving have enabled the jury to understand the meaning of damages ? The instruction merely informed the jury that from the amount of compensation, if any, to be found, there should be excluded certain elements. What was the authority of the court, even if the case were submitted upon a general charge, to instruct the inclusion or exclusion of the particular elements? ’Can there be any other answer than that the law authorizes recovery of those to be included and forbids recovery of those to be excluded ? And, if so, can there be any argument against the proposition that an instruction to the jury to make such inclusions and exclusions would be a charge or instruction upon the law? The point, however, which is here sought to be emphasized is that if the jury did not know the meaning of the word “damages” — the only reason for giving a definition or explanation of such term in any event — they would gain no better knowledge from the charge. The charge performed no function of an explanation or definition of the term.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    DAVIS et al. v. ROACH et al.
    No. 8896.
    Court of Civil Appeals of Texas. Austin.
    Feb. 21, 1940.
    Rehearing Denied March 20, 1940.

      Walker & Hammett, of Lampasas, arid Stinson, Hair, Brooks & Duke, of Abilene, for appellants. '
    Cox & Hayden, of Abilene, for appellees John Roach et. al.
    J. Tom Higgins, of Lampasas, and .A.. R. Eidson, of Hamilton, for appellees Violet Roach and J. L. .ButtrelL ... . , i
   BLAIR, Justice.

Appellant Mrs. Mattie Pearl Davis,made •application under the terms of..Art.; 3349, ■Rev.St. to probate the Written will of Patrick J. Roach, deceased, alleging that: it had :been lost or destroyed but not; revoked; that it made certain disposition of the'property of testator; and that proponent was •a beneficiary and named executrix of the will. .Appellees,' the heirs at law of testator, including his widow, contested the application ; and after.'a hearing the will was adinitted. to pfobate. , Contestants' appealed to the district, court, where at the conclu- : sion, of proponent’s evidence, the Court instructed i a verdict for -contestants, and accordingly- rendered judgment denying the will td probate; hence this appeal.

The trialcourt interpreted the evidence as showing that the will was in' the possession'or accessible to the testator at all times prior'to his death and could not be found by diligent .search after his death; and. held that the presumption of law obtained' that the testator had himself destroyed the will during his lifetime, with intent to revoke it; 'and that proponent ■ failed to rebut this presumption by competent" evidence:’ This rule'of law is settled in this state. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326.

With..the.,rule proponent does"npt disagree, but contends' that the évidénCé,/ad-duced and other evidence offered, but erroneously excluded by 'the ;trial court, were sufficient-, 'if ’believed- by -the jury, ■ to-'-rebút the presumption of destruction of the will by the testator with intent to revoke it. We do not sustain this contention.

An attorney, J. C. Abney, testified that he drew a will for Patrick J. Roach about September, 1927, which Roach executed in the manner required by law. Witness and his father, W. B. Abney, signed the will as attesting witnesses, and it was then delivered to Roach, and witness never saw it thereafter. Witness also testified to his recollection of the contents of the will.

W. W. Tippen, who at the time operated a national bank at Lometa, Texas, and with which bank Roach did business, testified in substance that about the year 1927 Roach brought his will to the bank and requested him to read it and to make some explanations of its provisions, which he did. Roach kept some private papers in a green metal box in the vault of the bank used by its customers for keeping private papers. After reading the will Roach requested witness to place it in the green box, which he did. The box had a lock on it, and witness kept one key to it in his desk at the bank and Roach kept another key. Roach could have obtained the box at any time ■ by requesting witness or any employe of the bank to get it for him. The bank failed in the year 1931, at which time witness left the bank, and its affairs were turned over to a receiver. Witness testified that the box in which he placed the will was left in the'vault, and was there when he turned the bank’s affairs over to the receiver, and witness never saw the will after he placed it in the box. Witness also testified to his recollection of the contents of the will, which differed in some respects from the contents testified to by the attorney who drew the will; -but there can be, no question that the will which’these two witnesses described was the same will. ' No other witness ever saw the will. By it proponent was made executrix and was left a large portion of the estate of testator. A dili,gent search was made for the will after the death of testator by his brothers and the husband of proponent, but it was not found. ■ A dark green metal box was ■found by them at-a merchandise store in Lometa, which they receipted for as a locked box belonging to testator. It contained other papers of testator, but not his will.

These facts adduced by proponent bring the case,clearly within the rule stated, and standing alone and unexplained require and sustain the conclusion of the trial court that the alleged lost or destroyed will was not admissible to probate. McElroy v. Phink, supra; Aschenbeck v. Aschenbeck, supra; Clover v. Clover, Tex.Civ.App., 224 S.W. 916, 920; Buchanan v. Rollings, Tex.Civ.App., 112 S.W. 785; Rape v. Cochran, Tex.Civ.App., 217 S.W. 250; and Shepherd v. Stearns, Tex.Civ.App., 45 S.W.2d 246.

But proponent contends that the presumption of revocation from the facts of disappearance of the will and the possession or control thereover by the testator does not arise or is rebutted in the instant case because the' evidence showed that the will was in the ■ possession of a person other than the testator prior to his death. This contention is predicated upon the facts that testator left the will in his locked box in the vault of the bank and left a key thereto with Tippen at the time he was in charge of the bank. This contention assumes, contrary to the evidence, that the will was last in the possession of Tippen, or later the receiver. The will was in the locked box of the testator, which was deposited in the vault of the bank used by its customers for that purpose, and all testator had to do to get actual physical possession of the box containing the will -was to ask Tippen or any employe of the bank for it. No one was authorized or shown to have taken the ■will from the locked box of testator, or to have had any opportunity to have done so. He alone had control of and access to it under the evidence adduced. These facts bring the case clearly within the rule that the presumption that testator revoked his will arises when it was in his possession or “accessible” to him and cannot be found after his death. This rule of accessibility to the will by testator has been approved by the Texas courts in the application of presumption of revocation doctrine. Clover v. Clover, Tex.Civ.App., 224 S.W. 916; Aschenbeck v. Aschenbeck, Tex.Civ.App., 62 S.W.2d 326; Shepherd v. Stearns, Tex.Civ.App., 45 S.W.2d 246. It is also the rule in numerous other states. See 34 A.L. R. 1309, and cases there cited.

The court admitted the testimony of W. C. Roach, a brother of proponent, to the effect that he heard testator tell his (testator’s) father that he expected to leave the bulk of his estate to proponent, who was testator’s niece and whom he had partly reared and was very fond of. Aaron Cummings also testified that testator told him “long before (testator) was married” that he expected to leave the bulk of his estate to proponent. These statements attributed to testator were admitted as tending to show his affection for proponent and his intention to leave her the bulk of his property. But these statements were made long before testator made the will and long before he married, and they are not of such probative value as would overcome the presumption of' revocation rule above stated, because they had no relation to the fact that the will which was subsequently executed could not be found after testator’s death. And certainly standing alone this testimony was not sufficient to overcome the presumption that testator had destroyed the will with intent to revoke it.

Proponent, however, proffered the testimony of James A. Davis, her husband, to the effect that in July or August of 1936, preceding testator’s death in October, 1936, he told witness that witness need not pay the balance of his note to testator because Mattie Pearl (proponent) would get his property anyway under his will. That testator also told witness on this occasion that things were not going well between himself and his wife, because she had not lived up to her promises, in that she had not joined the Catholic Church as she had promised him; and that she had brought all of her children by a former marriage to testator’s home, which she had promised not to do; and that early in 1936 testator told him that he feared for his life and was afraid to stay at home. Witness also offered to testify that between the years 1927 and 1936 testator told him on several occasions- that his will, took care of Mattie Pearl (proponent), because he loved her and had raised her as his own child. . This testimony was proffered as tending.to show testator’s affection for proponent and as tending to show that she was a beneficiary of his will; and that he had no intention at said times of revoking it. The testimony was excluded as being contrary to the provisions of Art. 3716, which provides that: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by,' the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with1 such decedent.”

If this testimony of the husband was admissible, it was sufficient to ovércome the presumption that testator had destroyed the will with intent to revoke it; and a jury question would have been presented on the issue. We have reached the conclusion, however, that the trial court properly excluded the testimony as being inhibited by the provisions of Art. 3716, supra.

Proponent instituted this action by her application to probate the alleged lost or destroyed will under which she was named executrix and was devised a large portion of the estate of testator. She was not joined by her husband in her application to probate the will and to adjudicate her interest thereunder as devisee; nor did he join her in the appeal of contestants to the district court from the order probating the will and adjudicating her interest thereunder as - devisee, where, under the applicable statutes, a trial de novo of these same issues was had.

The asserted right of proponent to probate the will and the contest thereof by the heirs of the testator, and the appeal to the district court from the order appointing proponent executrix and probating the will is an action between the executrix as such and the heirs of the testator. The asserted right of proponent to a large portion of the estate of the testator as devisee under his will is an' action between proponent personally and the heirs of the testator, which action “plainly arose out of a transaction with the decedent,” in that the “action arose from the making of the will” by the decedent. Leahy v. Timon, 110 Tex. 73, 82, 215 S.W. 951; Sanders v. Kirbie, 94 Tex. 564, 63 S.W. 626. And if the husband in the instant case had joined pro forma in this.action of the wife to recover her separate .property devised her under the 'will, then, under the rule stated in. the Leahy case [110 Tex. 73, 215 S.W. 953], the provisions of the statute in ■ question extended to him, and its language “plainly commanded the exclusion” of his proffered testimony as to the aforementioned statements attributed to testator.

But proponent seeks to- avoid the rule stated in the Leahy case upon the ground that she did not make her husband -a party to this action. Contestants filed' a plea in abatement and special exceptions to hér pleadings and action because she was not joined therein by her husband; which were overruled by -the • court, and to which action, contestants excepted, but have not cross-assigned error thereon. On the question thus presented the trial court apparently held that the husband was at least a proper party to the action of the wife to adjudicate her interest as devisee under the will as against -contestants, the heirs of testator; and that, therefore, the statute applied to and inhibited him from testifying as to the aforementioned statements attributed to the testator.

This rule of exclusion of the • testimony, of the husband where he is not a party to the suit or action of the wife to recover her separate property as against the heirs of a decedent, was recognized and approved by the Supreme Court in the case of Heirs of Reddin v. Smith, 65 Tex. 26, wherein a married woman who was separated from her husband but not divorced and who was not joined in h'er suit by the husband, sued the heirs of a decedent. The court held that the testimony of the husband as to transactions with the decedent should have-been excluded, because he. was a proper party to the suit within the meaning of the statute then existing, which is now, Art. 3716, supra. ’ The rule thus announced in the Reddin case was again cited and approved by the Supreme Court in. the Leahy case, wherein the court say: .“The exclusion of parties, .within the meaning of the statute, has been extended to a • hus-. band separated from his. wife, though not divorced, .upon the ground óf .bis being a proper pa,rty plaintiff. Heirs of Reddin v. Smith, 65 Tex. 26.”

' N'o ease ’has been cited nor found' which holds that the statute in question does not extend to the testimony ' of. the husbajid where he is not a party to the action of the Wife' to recover her separate property as against the" heirs of a decedent. ■ On the contrary; -the' courts "hold that the statute • does extend- to him Whether or not he is ■ a party to-such an-action. -It would therefore seem to' be ’immaterial whether the husband of proponent was made a party to this action by her in so far as- the applicability of the statute is concerned. And manifestly the proponent could not by filing her'own action against the heirs of the testator to-adjudicate her interest- as devisee under :his will affect the status of her husband as a witness in her own behalf under the - statute, because. he is-;a proper-party to'her action, and the courts have interpreted the statute- to-¡extend to and inhibit him from testifying to state-, ments attributed to the testator.

Proponent cites the cases of Mitchell v. Deane, Tex.Com.App., 10 S.W.2d 717, and Kennedy’s Estate v. Richardson, Tex.Civ.App., 41 S.W.2d 95, which hold that the provisions of the statute do not extend to the wife of an heir of a testator or testatrix, in a suit to set aside an order probating a will, to which suit the husband, an heir of testator or testatrix, is a party. The decision is rested solely upon the facts that the suit is for the recovery of the husband’s separate property, in which the wife has at best only' a potential interest, and in which suit the wife is not a “necessary, proper or actual party.”' These cases are not in point, because the status of the wife with respect to the husband’s separate property is different from the status of the husband with respect to the wife’s separate property. The statutes authorize and empower the husband to manage and control the wife’s separate estate, and to bring suit, in his own name for the recovery ■ of the, wife’s separate property. Arts. 1983-1985. It 'is- the general .rule that the wife may sue for her. separate property in her own name only where her husband refuses to join her, or has abandoned her, or is insane. Newell v. State, Tex.Civ.App., 103 S.W.2d 194. In fact, it has been the general policy of our- laws to impose-the duty upon the husband to protect the wife’s separate estate, and our statute even provides that when a married woman is appointed executrix of a will, the'husband should join her in the execution of her bond, and she is authorized to execute such bond without the joinder of the husband only upon a showing' of the statutory reasons -why her husband, did not join her in the execution of the bond.- Art. 3390. And as above stated, we find -no case which holds that the statute does not extend to the testimony of the husband, but the Supreme Court has uniformly held that the statute does extend to him because he is at least a proper party to the wife’s .action to recover 'her .separate property as against the heirs of a decedent.

. The court correctly excluded 'certain proffered testimony of witnesses, Sylvester Lewis,-Willis Brown, W. C. Roach, and proponent, upon the ground that samé was -hearsay. The excluded testimony of each witness related to actions, statements, and.declarations of Finas Britten, a stepson of testator-; ...... ..

Sylvester Lewis, who was an attorney and a friend of Finas Britten, would have testified that a short time before testator’s death Britten sought information as to the laws of descent and distribution in regard to real estate, as well as the effect of a will upon a decedent’s property; which information witness gave Britten, not as an attorney but as a friend. Britten also sought information of witness as to whether testator could be made to pay hospital bills and medical expenses of his wife, Britten’s mother; and was advised thereon by witness, not as an attorney but as a friend. This testimony was hearsay.

Witness Willis Brown would have testified that shortly after the death of testator he heard a conversation between Finas Britten and Marvin Brister, in which Britten told Brister that testator had a will, that he knew where it was, but that nobody could get it. This testimony was clearly hearsay.

W. C. Roach would have testified that he and his sister, proponent,- went to San Antonio after testator’s death, where Finas Britten was in the United States Army; that Britten told them if he had a leave of absence he could find the will. The leave of absence was obtained and Britten was taken to the home of his mother, which was testator’s home before his death, and left there. The next morning he told witness and proponent that he had not found the will. Proponent offered to testify to the same facts; and further that she offered to pay Britten $125 if he could find the will, and that he agreed to try to find it, but did not do so. This proffered testimony was'hearsay.

Proponent sought to introduce this testimony of these four witnesses tó show by circumstance that testator left a will which had not been revoked; and to show that the conduct and declarations of Finas Britten were inconsistent, and that Finas Britten was so situated while living in the home of his mother and testator to - have taken the will without the knowledge -or consent of testator.

If the testimony had been admitted it would have only shown that the will could not be found after testator’s death, and was insufficient to overcome the presumption that testator had destroyed it with intention to revoke it under the rule above stated.

If the purpose of the testimony was to show that Finas Britten made inconsistent statements, then no proper predicate was laid for such impeaching testimony. Britten had no interest in the estate. He was not called as a witness and no proper predicate was laid to impeach the witnéss as to the alleged' inconsistent actions or statements. Such predicate is-required: (1) to give the witness an opportunity to bring out his version of the-statement or testimony and, in any event,, to explain bias or prejudice and inconsistent statements; and (2) because unless, introducéd to contradict and discredit the witness, testimony as to what the witness, said on another occasion would be hearsay. 45 Tex.Jur., 158, § 282, and cases there cited.

The judgment of the trial court will be affirmed.

Affirmed.


author: CODY, Justice.

text:
    SERVICE MUT. INS. CO. OF TEXAS v. WHITE et al.
    No. 10972.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 29, 1940.
    Rehearing Denied March 28, 1940.

      Scott & Wilson and W. E. Cureton, all of Waco, for appellant.
    • Johnson & Oliphant, of Dallas, for ap-pellee. , . •
   CODY, Justice.

This is a workmen’s compensation case, and has been advanced for submission here under rule of our court. Appellee was injured while' working on forms in which concrete was to be poured; he was a bridge carpenter.. On findings of the jury, judgment for total and permanent incapacity was rendered in favor of appellee and a lump sum compensation awarded- him.

Reversal is sought because of admission of certain evidence; because of the court’s refusal to give a peremptory instruction in appellant’s favor; because the court, defined the term “preponderance of the evidence” ; because the court submitted certain issues; because the court refused to submit certain issues; because .of appellee’s argument to the jury; and because of the jury’s conduct.

Dr. W. T. Wade was permitted to testify, over appellant’s-objection that his evidence was hearsay and not the best evidence, that he examined appellee under instructions he received from the Industrial Accident Board, through the mail. No doubt a letter is the best evidence ■ of its .contents, but a case will.not, be reversed for a mere abstract error in the admission of hearsay evidence. We are unable to see how the .admission, of such evidence could have injured appellant, nor has appellant attempted to enlighten us on this point. The assignment is without merit, and is accordingly overruled.

Appellant earnestly insists that it was entitled to a peremptory instruction on the ground that appellee had failed to discharge the burden of proof -resting on a claimant under subsection 3 of Section 1, Art. 8309, R.S.1925, by negativing Subsections 1 and 2 of said Section 1. It is well settled that the burden is upon the claimant to show that it is impracticable to compute the average weekly wage under either Subsections 1 or 2. before .Subsection 3 of Section 1 of said Article 8309, R.S. 1925, can be resorted to. American Employers’ Insurance Co. v. Singleton, Tex.Com.App., 24 S.W.2d 26. Appellee testified that he had not worked as many as 300 days during the year immediately preceding August 25, 1937, the date his -injury occurred. That he worked every day that the Government would allow him to work, which was four and five days per week, with- occasionally a day’s overtime, and that he had had a job all the time. The Honorable Hays Bowers, Judge of the County Court of Burleson County, testified that nobody worked on bridge building as many as 300 days between August 25, 1936, and August 25,1937. H. T. Fitzgerald testified that he had not worked anyone for as much as 300 days during such period.

Now, to qualify under Subsection 1 of Section 1 of Article 8309, the injured employee shall have worked in the employment in which he was working at the time of the injury substantially the whole of the year, and his annual average wage shall be 300 times the average daily salary which he shall have earned. Vid. American Employers’ Ins. Co. v. Singleton, supra. So it is quite clear that appellee’s evidence would support a jury finding that he had not worked in the employment in which he was working at the time he was injured substantially the whole of the year before the injury.

Under Subsection 2 of the act referred to it is provided that, if the injured employee shall not have worked in the same employment during substantially the whole of the year next preceding the injury, his ave'rage annual wages shall consist of 300 times the average daily wage or salary which an employee of the same class working substantially the whole of the preceding year in the same or similar employment in the same or in a neighboring place shall have earned, etc. While it may be conceded that there was no' direct and positive evidence to the- effect that there were no employees of the same class who worked substantially the whole of the preceding year in the same or- similar employment in the same or a neighboring place, such a -fact could not, in its very nature, be readily established positively. It seldom occurs that the negative of any point can be positively established. See Traders & General Ins. Co. v. Crouch, Tex.Civ.App., 113 S.W.2d 650, 653; American Surety Co. v. Underwood, Tex.Civ.App., 74 S.W.2d 551, 553. Appellee offered evidence from which it could be inferred that no employee of his class either worked, or would have been ■ permitted by the Government to have worked 300 days preceding the date of his injury. Appellant could have offered controverting evidence. It is clear to us that it was not error to refuse to instruct a verdict against appellee on the grounds urged in appellant’s assignment of error, and the assignment is overruled.

Appellant objected to‘the admission of testimony by Mr.' Fitzgerald that the rate of pay for carpenters from August, 1936, to August, 1937, was 75 cents per hour, but not on the ground that the wit■ness was not qualified to give such evidence. And in connection with such objection, appellant re-urges here that claimant had failed to show that there were not -other employees in the same or similar employment working in the same or neighboring places who had not worked substantially the whole, of the .year next preceding the date of appellee’s injuries— though the objection urged at the trial was that such testimony was immaterial, irrelevant and that no proper predicate had ‘been laid therefor. As we have heretofore •ruled, there was sufficient evidence before ;the jury from which it could be inferred that it was impracticable to compute the .average weekly wage under either Sub-jections 1 or 2. This assignment therefore ¡is overruled.

Appellant complains, not that the court incorrectly defined “preponderance ¡of the evidence”, but that it defined the term at all, because the term was not a legal one, but one of ordinary meaning. If it be conceded that the court, in points •of abstract law, made a fault, we are •unable to see, and appellant does not tell •us, how this could form the basis for reversing the trial court’s judgment'in this cause.

Appellant contends that it was reversible ■¡error to submit the issue as to the number of weeks of total incapacity suffered by -claimant, conditioned on the jury’s answer in response to a prior issue that such -incapacity was temporary; and that appellant (the Insurance Company) was entitled to an unconditional submission of •¡the issue as to the number of weeks of total ■incapacity suffered by claimant. The issue ■complained of, being Special Issue No. 5, reads: “From a preponderance of the ■evidence, how many weeks, if any, of total incapacity, if any you have found in ¡answer to special issue No. 2, do you find that Will White sustained, by reason of the injuries sufferéd by him on. August .25, 1937?” This was preceded by the following instruction: “If you have answered special issue No. 4, ‘Such incapacity •was temporary’, then you will answer •special issue No. 5, otherwise do not answer special issue No. 5.”

The jury were asked, and found in response.to special issue No. 2, that the injury naturally resulted in total incapacity .of Will White. The jury were asked, and found in response to special issue No. 3, ¡that the total incapacity was permanent;

and were asked, and found in response to special issue No. 4, that such total incapacity was not temporary. The' defense that the incapacity was temporary was submitted by special issue No. 4. We overrule the assignment as being without'merit. The issue as to the incapacity being temporary was unconditionally submitted.

Appellant objected to the special issue: “What amount of money, if any, do you find from a preponderance of the evidence to be just and fair to both parties to be fixed as the average weekly wage of Will White ?” The jury answered: “$25.00 per week”. This special issue is a submission to the jury of the standard fixed by Subsection 3 of Art. 8309'; and appellant’s objection is the same objection, in different form, that appellee did not introduce evidence, which, if believed, would support the finding that Subsections 1 and 2 had been negatived; for the reasons already given, it is overruled.

We are unable from appellant’s presentment of its. proposition No. 7 to determine if it has merit; and as appellant does not refer to authority in support of such proposition, we are ünable to gather from cited authority the force of such presentment. ■ What we have said with reference to appellant’s presentment of its proposition No. 7 applies equally with reference to its .presentment of proposition No. 8.

Appellant requested, and the court re- ' fused, and the appellant assigns error for - the refusal, to give the following special issue: “Do you find from a preponderance of the evidence, if any, that after the total incapacity, if any, on the part of Will White ceases to- exist, if it will cease to exist, that the said Will White will have any partial incapacity?”

Appellant introduced evidence, .being doctors’ opinions, to the effect that appellee’s broken neck, had .healed, and that the only incapacity he' was suffering from at the time of the trial was,stiffness of the neck which had resulted from wearing a brace, and that this would disappear in two or three months time if appellee would cease wearing the brace. It seems to us that' the gist- of such' evidence, if believed, would establish that the incapacity was temporary. And this point was covered by special issue. No. 4,, hereinabove referred to. Texas Employers’ Ins. Ass’n v. Galloway, Tex.Civ.App., 40 S.W.2d 973, 975.

We have considered the assignment relative to improper argument to the jury. The jury can he depended upon to bear in mind that an advocate of one of the parties is not summing up with the impartiality of a judge. The argument complained of was legitimate advocacy.

The trial court has ruled against the appellant’s contention of misconduct of the jury. If it can be said that there was some evidence of the alleged misconduct, it can also be said that there was ample evidence to sustain the court’s action thereon.

We have concluded that no reversible error occurred in the trial of this cause, and that the judgment of 'the trial court should in all things be affirmed. It will accordingly be so ordered.

Affirmed.


author: FUNDERBURK, Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. HARRIS.
    No. 1986.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 23, 1940.
    Rehearing Denied March 22, 1940.
    Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, for appellant.
    Kirby, -King & Overshiner, of Abilene, for appellee.
   FUNDERBURK, Justice.

Ewell Harris by this suit seeks to recover from Hartford Accident & Indemnity Company, the compensation insurance carrier, for West Texas Cotton Oil Company, a former employer of Harris, compensation for total incapacity covering a period of one year.

The injury consisted of an alleged hernia. The defendant offered to provide an operation, to which the employee refused to submit. The Industrial Accident Board, before which plaintiff's claim for compensation was pending, following (presumably) the statutory procedure (R.S.1925, Art. 8306, sec. 12b), ordered an operation (i. e., formally declared that it was not more than ordinarily unsafe for said employee to submit to an operation). Harris, after said order, still refusing to submit to an operation, brought this suit within twenty days from the date of the award of the Board. By his pleading the employee limited his claim for compensation to a period of one year.

In a non-jury trial the court rendered judgment for plaintiff awarding recovery for total incapacity for a period of. one year, based upon an average weekly wage rate of $13.20, the judgment being for the sum of $410.80. The defendant has appealed.

The appellant, Hartford Accident & Indemnity Company, will be referred to as “insurer”, and the appellee Harris as “employee.”

Dr. W. F. .Snow, a witness for the employee,, after .stating his opinion as an expert witness to be that the employee’s condition (an incomplete hernia) would have some effect upon his ability to labor, was asked whether it would be total or partial,' to which he answered, “I think it would be partial.” Upon cross-examination he was asked to “State what percentage of disability you would say that would cause him — this incomplete hernia?” The witness, upon objection being made, was not permitted to answer, the objection being that: “The percentage of disability, if any, in ¡case there is partial incapacity, is a subject for the court or jury to pass on, and not the subject of expert testimony.” The -action of the court in not permitting the witness to answer the question is duly assigned as error. In our opinion,, the objection should have been overruled and the .witness permitted to answer. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332; Zurich General Accident & Liability Co. v. Kerr, Tex.Civ.App., 54 S.W.2d 349; Coleman Mut. Aid Ass’n v. Muse, Tex.Civ.App., 67 S.W.2d 393.

It is countered by appellee, among other things, to the effect that appellant’s assignment of error presents nothing for review because the record fails to disclose what the answer of the witness would- have been; and that the question, if answered, “would merely have elicited an opinion of the witness not binding on the trial court.”

“The general rule,” says the Supreme Court, “is that, in order to entitle a party to a revision of the ruling of the lower court in refusing to allow him to propound a question to a witness, he must show what answer he expected to élicit, in order that the court may see that he has been deprived of legitimate evidence. This rule applies mainly to a case where a party is seeking to introduce original evidence, the nature of which he should be expected to know before he offers the same * *." Cunningham v. Austin & N. W. Ry. Co., 88 Tex. 534, 31 S.W. 629, 631. Would the same rule be expected to apply to a cross-examination of a witness of the adverse party, the legitimate purpose of which is to elicit, if possible, an admission of facts (or even opinion of an expert witness) limiting, qualifying or explaining the witness’s testimony given upon direct examination?

The same decision declaring the rule as above stated further says that the rule “is not applicable to a case where the party is cross-examining the witness of his adversary, with whose knowledge of1 the cáse he is not supposed to be familiar. In this class of cases we think the better rule is that, if the question appears on its face to be calculated to elicit competent testimony, it is error to refuse the same, although counsel may not be able to state to ,the court the answer intended or expected to be elicited.” . Id.

. It may be doubted, we think, if it is strictly accurate to denominate the last named .rule as an exception to the other .rule. They cover different grounds and exist for different reasons. However, .whether as^ rule and exception to rule, or as different rules, the distinction seems to have bee'n generally recognized since the decision in the case cited. Curlee v. Rose, 27 Tex.Civ.App. 259, 65 S.W. 197; Schaffner v. Consolidated Oil Co., Tex.Com.App., 293 S.W. 159; Long v. Red River etc. R. Co., Tex.Civ.App., 85 S.W. 1048; Galveston H. & S. A. Ry. Co. v. Currie, Tex.Civ.App., 91 S.W. 1100 (holding the general or first rule and not the exception or second rule applicable to a leading question in a cross-examination).

The employee seeking to recover compensation for total incapacity had the burden of establishing that he was totally incapacitated. The opinion of his own witness that his injury resulted in partial incapacity was against him; but to what extent was not certain. The insurer undoubtedly, we think, had the right to have the degree of incapacity'further defined or limited, if it could do so by the testimony sought to be elicited. The question was well adapted to have that effect. Let us suppose that the answer had expressed the opinion that the incapacity was 10 per cent, can it be said that the exclusion of such testimony could not reasonably have affected the conclusion of fact that the employee had suffered total incapacity for a year? We think not.

Another assignment of error is: “The trial court erred in finding as a fact that appellee Ewell Harris suffered a total incapacity to labor for a period of a year as a result of injuries received while in the course of his employment on February 18, 1938.” The employee counters with the proposition that it "is not a distinct specification of error as required by Art. 1844, R.S., Vernon’s Ann.Civ.St. art. 1844, in that it fails to point how or wherein the court erred in said finding and thus does not present any question for this court to review.” The assignment of error distinctly specifies as error a finding of fact constituting an issue necessary to support the judgment for the employee. That seems to us to comprehend the entire function of an assignment of error. Clarendon, etc., Agency v. McClelland, 86 Tex. 179, 23 S.W. 576, 22 L.R.A. 105.

The counter proposition does not present the question that the assignment of error, although sufficient as such, is not supported by the record. Foust v. Jones, Tex.Civ.App., 90 S.W.2d 665. If, however, the, record failed to support the assignment it would involve a fundamental error. The assignment here with respect to necessary support by the record differs from those considered in the case last cited in this: Here the finding specified ás the ground of error is necessarily implied in the judgment of the court; while in the other case the “holdings” assigned as errors were not néc-essarily implied. In Wilson v. Johnson, 94 Tex. 272, 60 S.W. 242, an entire assignment of error was held to be implied. If an entire assignment of error may under any circumstances be implied, then it would be difficult consistently to reconcile- therewith a holding that an assignment specifying a ruling or action of the court necessarily implied by the judgment rendered would be insufficient as an assignment of error.

Five physicians testified in the case. Three testified that the employee did not have a hernia. The two who testified that he did have said that it was “an incomplete hernia.” As already seen, one of the two—Dr. Snow—said the incapacity was partial, not being permitted to say what he considered the percentage of incapacity to be. Dr. Cash, the other of the two physicians called as witnesses for the employee, being asked “whether or not, in your opinion, he suffers total incapacity to labor” answered “for manual labor, for the purpose of obtaining employment at manual labor, I would say that he cannot secure manual labor in the condition he is in at this time.” Asked again,, “Would you say that he is totally incapacitated?” He answered, “No, I didn’t say that, and I won’t say that * * * I said if I were examining him, I wouldn’t pass him without a waiver on his hernia; but we do have men that do work with a complete hernia every day.”

“Q. * * * tell the court what percentage he is disabled right now, from doing manual labor at all. A. He is not disabled, except that his hernia might pop on through at any time.
. “Q. Which would disable him? A. Not necessarily. I know many men that have worked all their lives with hernia.
“Q. Ordinarily does a person suffer pain from it ail along? A. No, not necessarily at all; not necessarily.”

It is not deemed advisable to review all the evidence which may have a bearing upon the question.' There is, however,, other evidence. There is an implication from the testimony of the employee’s .expert witnesses that if the employee wore a truss- he would be able to work. There was no effort to remove such implication. The employee himself as a witness testified that he had had a. number of jobs since the-injury, but nowhere does he say that he failed to obtain employment or lost a job because of the injury. , As we see it, if it can.be said that there was any evidence to show total incapacity more than a mere scintilla, surmise or suspicion, which is held to constitute no evidence, the evidence is so uncertain and inconclusive and against the great weight and preponderance of the evidence as right-

ly to call for the exercise by this court of its jurisdiction to determine that the evidence is insufficient.

For the reasons discussed, it is our opinion that the judgment should be reversed and the cause remanded. It is so ordered.