ON MOTION FOR REHEARING. In its motion for rehearing defendants asks, at the hands of this court, a ruling upon defendant's motion to strike out the evidence of Doctor Walker as to any permanent condition of plaintiff, for the reason that it is based partly upon what he discovered from his examination and partly upon the history of the case, and is hearsay testimony. *Page 710
This point was raised incidentally in defendant's brief and argument, but was not raised in its points and authorities. The record discloses that the evidence to which the motion to strike out applies was brought out by cross-examination, and is as follows:
"Q. Now, in giving your opinion here as to this man's condition I understand you necessarily take into consideration the history of the case you got from him? A. As far as it was of value to me.
"Q. But in telling the jury your opinion you do take that into consideration? A. To a small degree, because of the fact, if I may explain, in such cases as these they may be liars and everything else, and they are trying to pull something on me.
"Q. They can't do that, can they?
"MR. ELLIOTT: We object to the interruption.
"THE WITNESS: I don't take these cases for that purpose at all. I will help a patient if I can and do what I can as far as my services go. Therefore, as to the history of the accident or the case I have to see it myself; that should have very little weight in the cause, because these cases are of daily occurrence and I don't know myself how they occurred; the only thing is, I find them there. A man breaks his leg. He might tell me different ways he did it. It wouldn't make much difference. I found he had a broken leg, the important part; history might be considered but it don't have much to do with the broken leg."
From these excerpts from the Doctor's testimony, it is manifest the cause of defendant was not prejudiced by the refusal of the court to strike out. This is especially true from the fact that the only time the witness said he took into consideration the history of the case was in response to leading questions by defendant's counsel.
The cases cited by defendant in support of his contention, to-wit, Borowski v. Biscuit Co., 229 S.W. 424, and Magill v. Bank, 232 S.W. 448, do not apply. In the case first named the ruling was against the receipt of *Page 711 evidence by an expert witness to the effect that he had learned from the plaintiff the condition of her eyes prior to the injury, and he was allowed to testify to such condition as detailed by her. The evidence clearly was hearsay and was held to be reversible error.
In the Magill case, a witness was allowed to testify to the effect that in diagnosing the case he took into consideration what the plaintiff had told him of her prior condition and he was permitted to relate the conversation. Clearly such testimony was hearsay. The difference between the testimony of which complaint is made in the case at bar and the two cases cited is so apparent that no further comment is necessary.
On reconsideration of this and all other points in defendant's motion for rehearing, the said motion is hereby overruled.
All the judges concur.
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