delivered the opinion of the Court.
In this workmen’s compensation case the issue, rather sharply drawn, was whether the concededly serious injury suffered by respondent was confined to his foot and leg or as contended by respondent affected adversely other parts of his body, principally his back and hip, by reason of which he claimed- total and permanent disability.
Based on the jury’s verdict favorable to respondent, judgment was rendered against , petitioner, Texas Employers’ Insurance Association, for 208 weeks of total incapacity at. the rate of $25.00 per week and for 193 weeks of 75% permanent partial, incapacity at the rate of $22.50 per week. This judgment was affirmed by the Court of Civil Appeals, and writ of error Has been granted. 252 S.W. 2d 754.
At the beginning of the trial the petitioner, conceding that the pleading and.evidence would sustain the award of a “lump-sum” recovery, moved the Court to instruct counsel not to read to the jury that portion of his petition setting out such fact allegations, one of which being that a contract had been made with respondent for a third of the recovery to be paid as attorney’s fees. This motion was sustained.
Petitioner then moved the Court to instruct respondent’s attorney not to read to the jury that part of the petition which, followed and which reiterated the contract for attorney’s fees. This motion was overruled and the allegation was read to the jury. We are of the opinion that this action on. the part of the trial court was error. ....
Under no theory was it pertinent to advise the jury that *202the plaintiff, by reason of the contract made with his attorney, would eventually receive only two-thirds of whatever award might be made. The amount of attorney’s fees to be allowed in a compensation case is exclusively for the court and not the jury, and any such contract was made subject to the approval by the court. The court in his discretion could award a lesser amount. Art. 8306, Sec. 7d, Revised Civil Statutes; Texas Employers’ Insurance Ass’n. v. Lane, 124 S. W. 2d. 893; Texas Indemnity Insurance Co. v. Bush, 163 S. W. 2d. 224.
Respondent, insisting that the action of the court was proper, cites the case of Employers’ Liability Assurance Corporation v. Sims, 67 S. W. 2d. 445 (Error refused); Houston Fire & Casualty Insurance Co. v. Ford, 241 S. W. 2d. 158, N.R.E. In both of those cases the issue of lump-sum award was before the jury for decision, and the element of attorney’s fees was properly to be considered by the jury on that issue. Consequently these cases are not in point here.
The Court of Civil Appeals justifies the reading of this allegation by invoking Rule 265, Texas Rules of Civil Procedure. We believe the purpose of the rule is no more than to set forth the order in which the different steps of a jury trial are to be taken generally. It has no application at all to the point raised here. Johnson v. Willoughby, 183 S. W. 2d. 201, Error refused.
It has been held by this court that a discussion of attorney’s fees by the jury is material misconduct and will justify reversal. White Cabs v. Moore, 146 Texas 101, 203 S. W. 2d. 200; Texas & P. Ry. Co. v. Gillette, 125 Texas 563, 83 S. W. 2d. 307; St. Louis Southwestern Ry. Co. v. Lewis, 10 S. W. 2d. 534; Texas & P. Ry. Co. v. Mix, 193 S. W. 2d. 542.
Respondent argues that these cited cases involving suits for damages at common law would not be applicable to this suit brought under the workmen’s compensation law. We are able to perceive no difference in the principle involved. The same calculated influence brought to bear and such information given to the jury seems to us to be just as effective in a compensation case as it would be in a damage suit. In this case there was no inadvertent reference to attorney’s fees, no instruction by the court to disregard the same, but on the other hand the contract for attorney’s fees was read with the express approval and permission of the court. *203The application of the rule contended for by respondent would compel the reading to the jury of those purely jurisdictional allegations concerning the prior submisison of the claim to the Industrial Accident Board and its award, which clearly are not permitted to be revealed to the jury. Fidelity Union Casualty Co. v. Cary, 25 S.W. 2d. 302, (Com. App.) ; Texas Employers’ Insurance Ass’n. v. Downing, 218 S.W. 112. Writ refused; Employers’ Liability Assurance Corporation v. Young, 203 S.W. 2d. 822.
In our opinion this error was reasonably calculated to create a greater sympathy for respondent, to influence the jury to make a larger award than it would otherwise have made, and thus cause the rendition of an improper judgment in this case. Rule 503, Texas Rules Civil Procedure; Texas Power & Light Co. v. Hering, 148 Texas 350, 224 S.W. 2d. 191.
On the second point we agree with petitioner that the trial court erred in refusing to permit its medical witness to manipulate respondent’s foot in an effort to show that there was no loss of motion as claimed. Respondent, while on the stand in the presence of the jury and at the suggestion of counsel, removed his shoes and socks and demonstrated to the jury he could not depress his foot below a horizontal position. Petitioner then sought to have its medical witness, by taking hold of the foot, to show that the member could be raised and lowered from the horizontal position. The objection made by respondent’s counsel and sustained by the court is as follows:
“We object to try to have a medical examination made here because the law provides a method and a way and we want our rights under the law.
“We have no objection to the doctor’s testifying about it, but if he goes to touch him we object.”
Petitioner contends that when the injured part has been bared and exhibited to the jury, in effect it was introduced in evidence and accordingly an examination and demonstration should have been permitted then and there. The rule is well stated in Kenney v. LaGrone, 62 S. W. 2d. 600, citing Chicago R. & I. T. Ry. Co. v. Langston, 19 Texas Civ. App. 568, 47 S. W. 1027, affirmed, 92 Texas 709, 51 S. W. 331, and many other authorities. While these cases deal with the right of an examination in the presence of the jury, nonetheless we think the holdings clearly encompass the right of the demonstration *204sought to be performed here. Respondent contends that this was in effect an attempt on petitioner’s part to have a physical examination made and to accomplish this he should have availed himself of the provisions of Section 4, Article 8307, Revised Civil Statutes. This contention was sustained by the Court of Civil Appeals.
Under the circumstances here we do not think this provision has any application. An examination had already been made by this doctor and he was attempting here to demonstrate what he claimed his previous examination revealed, namely, that there was little loss of motion and that the foot could be manipulated up and down from the ankle joint.
Respondent argues that even had the doctor been able to raise and lower the foot, and had he been permitted to demonstrate this fact to the jury it would have had no weight or bearing for the reason that it would not tend to show that respondent himself had such muscular control over the movement of his foot. We think a fair appraisal of the respondent’s testimony would indicate a rigidity or stiffness in the ankle joint caused by a fusion of the bones rather than a muscular failure. At least the demonstration such as the doctor asserted could have been made would tend to show that there was no such stiffness or rigidity. There was no assertion or objection that such pressure as the doctor might apply would cause any discomfort or pain and no reason is shown why the privilege of this demonstration should have been refused.
By reason of the error in permitting the contract for attorney’s fees to be read to the jury, the judgments of the trial court and Court of Civil Appeals are reversed and the cause remanded to the district court for another trial.
Opinion delivered February 11, 1953.