Commercial Standard Insurance v. Robinson

ON REHEARING.

The defendant in error in his motion for rehearing cites International & G. N. R. Co. v. Goswick, 98 Texas 477, 85 S. W. 785, a case not cited in the application for writ of error and not mentioned in our original opinion. The claimed conflict between our original opinion and the opinion in that case does not exist when the question there decided is analyzed. The assignment of error considered in that case was:

“‘The trial court erred in excluding the testimony of Drs. Jameson, Dupuy, and Martin, and the Court of Civil Appeals (83 S. W. (2d) 423) erred in sustaining said action of the trial court, because the substance of the question to said doctors was what was their opinion on the permanency of plaintiff’s injuries, when considered, amongst other things, in connection with the declarations of the plaintiff, and the object was to know what reliance the doctors would put in his declarations, in connection with their physical examination of him, when considered in the light of the fact that he had a case pending in court for damages for these very injuries. The trial court excluded said testimony because in the hypothetical question the fact was stated that plaintiff had a case pending in court; the court saying that, if that was left out, he would *189permit the doctors to answer. Appellant excepted to said ruling of the court because it contended that the motives which prompt a man who• is afflicted to make declarations of his feelings ought to be known to the doctor whose opinion is desired.’” (Italics supplied).

That assignment clearly reflects that what was there before the court was the question of whether or not the doctors should pass1 upon the credibility of the plaintiff, a very different question from that presented in this case.

The motion for rehearing is overruled.

Opinion adopted by the Supreme Court June 11, 1941.

Second motion for rehearing overruled July 9, 1941.