dissenting.
I cannot agree to a reversal of this case, and, therefore, respectfully register this dissent.
Respondent filed this suit November 10, 1950, alleging that he was a minor 19 years of age, and sustained an injury on November 29, 1949, while in the course of his employment with the Keetch Metal Works, Inc. Paragraph 10 of his petition alleges that hardship and injustice would result unless the compensation due him is paid in a lump sum, and one of the reasons was that he had contracted and agreed to pay his attorneys one-third of any recovery which might be awarded.
Paragraph 11 contains the usual allegations as to employment of attorneys, the necessity therefor and his agreement to pay his attorneys one-third of any recovery. On December 1, 1950, petitioner filed its Original Answer containing two special exceptions. Special Exception Number One reads as follows:
“Defendant moves the Court to prohibit the plaintiff from reading to the jury the allegations in Paragraph 10 of said petition, wherein plaintiff seeks to recover a lump sum award, and *215for the purpose of this motion, defendant stipulates that, in the event plaintiff receives a total and permanent award, defendant will pay same in a lump sum; consequently, in view of the stipulation aforesaid, the allegations of manifest hardship and injustice are not material or relevant to any issue in the case, and to permit same to be read to and considered by the jury would cause or have a tendency to cause the jury to find a greater disability for a longer period of time than the facts otherwise warrant, and consequently, the reading of said allegation to the jury is and will be prejudicial to this defendant and, of the foregoing motion, defendant prays judgment of the Court.”
The trial court sustained this exception to which action the plaintiff excepted, and paragraph ten was not read to the jury, no evidence was introduced and no issue was submitted on the question of lump sum award.
Special Exception Number Two reads as follows:
“Defendant moves the Court to prohibit plaintiff from reading to the jury the allegations in Paragraph 11 and else where in said petition, wherein plaintiff alleges the employment of an attorney and agreement to pay him one-third of any recovery herein, for the reason that same is not a controverted fact between plaintiff and defendant, and is not an issuable fact to be submitted to the jury and its sole and only province is a jurisdictional one to enable the Court as distinguished from the jury to fix a reasonable attorney’s fee; and to permit same to be read to and considered by the jury would cause or have a tendency to cause the jury to find a greater disability for a longer period of time than the facts warrant, and to read same to the jury is therefore prejudicial to this defendant; and for the purpose of this motion, defendant stipulates that, in the event of a total and permanent award, defendant will pay same in a lump sum, and of the foregoing motion, defendant prays judgment of the Court.”
This exception was overruled and paragraph 11 was read to the jury. It will be noted that in passing on Special Exception Number Two, the trial court had before it the contention that paragraph 11 should not be read to the jury for the reason that the matter of attorney’s fees was a jurisdictional question, and its only purpose was to enable the court and not the jury to award a reasonable attorney’s fee, and the further contention that “to permit same to be read to and considered by the jury would *216cause or have a tendency to'cause the jury to find a greater disability for a longer period of time than the facts warrant, and to read the same to the jury is therefore prejudicial to this defendant * * (Emphasis added). In the first place, the issue of attorney’s fees is not a jurisdictional question, and in the next place, the record in this case does not support the contention that the jury awarded the respondent a greater period of disability than the facts warranted. The court in its charge instructed the jury, “During your deliberations on this case, you will not consider, discuss or relate any matters not in evidence before you, and you will not take into consideration the effect your answers may have on who wins or loses the case, but merely answer the questions as you may find the facts from the evidence before you and under the definitions and instructions given you herein.”
This Court, in the case of Gillette Motor Transport Co. v. Whitfield, 145 Texas 571, 200 S. W. 2d 624, said:
“Presumably, the jury understood and followed the instructions of the Court. (Authorities cited). And, if so, they considered only that which it was proper for them to consider and the defendant suffered no injury. We cannot presume that the jury, misunderstood and misapplied the Court’s instructions and considered matters which it should not have considered, and then base a reversal upon such an unsupported presumption.”
The answers of the jury to the questions propounded do not show a reckless disregard of its oath to follow the charge of the Court, but, on the other hand, reflects that the jury gave a fair, unbiased and impartial consideration to all the evidence introduced during the trial. The record contains 569 pages of evidence and the Court submitted the issues raised by such evidence. The jury found that the respondent sustained total disability, but that such disability was temporary, and that total incapacity continued for a period of 208 weeks. It found that respondent sustained 75% partial incapacity and that such partial incapacity was permanent.
This Court has never given any indication to litigants that the reading of the clause relative to attorney’s fees was prejudicial error.. In the case of Employers’ Liability Assur. Corporation, Limited, v. Sims, 67 S.W. 2d 445, Writ Refused, the Court had before it the same question raised by special exception, as in this case. In that case, this Court refused a writ of error, and thereby adopted the opinion as its own. The Court gave three *217separate and distinct reasons why. it was not reversible error to, read the pleading under question to the jury. It is true, the issue of lump sum award was involved, but aside from that question, the Court said:
“We do not think there was reversible error in overruling appellant’s objection to the reading to the jury of the clause in the petition, alleging that the petitioner had contracted to pay one-third of his statutory recovery as a fee. Such, clause contains a necessary allegation for the judgment to award the attorney fee out of appellee’s statutory recovery. In a contested case, arising under the Workmen’s Compensation Law (Rev. St. 1925, Art. 8306 et seq. as amended), the jury is not permitted to pass upon the amount of the recovery to be awarded. A jury determines only whether such employee was injured while working in the course of his employment, the character, extent, and duration of the injury, and, on these findings, the court fixes the amount of the recovery from such findings, under statutory mandate, in respect to the sum that must be adjudged. The court also finds the reasonable attorney fee, which is sought to be recovered, and apportions the statutory recovery, between the injured employee and his attorney, in accordance with such finding. If, however, we should be mistaken in the conclusion that it was not error to permit counsel for appellee to read to the jury the clause in the petition seeking the recovery of the attorney fee, nevertheless there is shown no reversible error in the instant case, for such error clearly appears to be harmless, for the evidence of the weekly wage that appellee received, as found' by the jury, is based upon evidence practically undisputed, and the finding that appellee received total and permanent disability is based upon the great preponderance of the evidence. It therefore affirmatively appears that appellant’s rights were in no way prejudiced by the ruling of the court.”
In the instant case,, as in the Employers’ Liability Assur. Corporation, Limited, v. Sims, supra, the jury was not permitted to pass upon the amount :of recovery to be awarded, it only passed on whether the' respondent was injured in the course of his employment, the character, extent and duration of the injury, and the amount of weekly wage which would be fair and just to both plaintiff and defendant. The evidence on the question of average weekly wage is undisputed; and the evidence on all the issues sustained the findings of the jury;
I am further of the opinion that the respondent in this case cannot eliminate the issue of lump sum award by way of special *218exception, and that it was error for the trial court to have sustained the exception as it did. The issue of lump sum award was one of fact and can only be decided by one of two methods— either submit the issue if raised by the evidence to the trier of the facts, or by agreement of the parties. The petitioner proceeded in this case so far as this issue is concerned in a manner which would not be binding on it. The special exception could have been withdrawn at any time before the close of the evidence. The respondent should not have been deprived of his right to plead and prove all the facts essential to a recovery of a lump sum unless and until the petitioner had agreed and offered, without reservation, to so pay whatever judgment might be awarded plaintiff, and such agreement and offer had been accepted by respondent.
By its second point petitioner contends that the trial court erred in refusing to permit Dr. Butte, a defense witness, to manipulate respondent’s foot in the presence of the jury. I agree with Mr. Justice Calvert that the action of the court was not error, but I go on to say that if it was error it was not reversible error.
It is true, respondent exhibited his foot to the jury, but, in so doing, he did not make any demonstration such as manually taking hold of his foot. The main issue in this case was not the existence and extent of limitation of motion in the joints of respondent’s foot and ankle, but what was the extent and duration of the injury and whether it extended to or affected other parts of his body.
The record shows that Dr. Butte testified at great length. His testimony begins on page 330 of the statement of facts and ends on page 407. At page 399 appears the question to which the court sustained objection. The question was:
“Doctor, I will ask you if you will exhibit to the jury and demonstrate the motion ánd lack of motion and limitation, if any, in this young man’s foot?”
Petitioner sets out in its Bill of Exceptions No. 3 that “had Dr. Butte been permitted to examine and inspect plaintiff’s foot, ankle and leg, and to manually flex the same in the presence of the jury, he could have pointed out and fully demonstrated to the jury at the time of the trial”. (Emphasis added).
“1. That plaintiff had completely recovered from a tremen*219dously swollen right foot and ankle and the large blisters, abrasions and skinned places over his foot which Dr. Butte observed on the first examination in December, 1949, within the first week of the accident in question.
“2. That the fractures to the first, third, fourth and fifth metatarsal bones in plaintiff’s right foot had completely healed and were in good alignment;
“3. That plaintiff’s heel bone was completely normal, in good alignment and freely moveable with no limitation of motion in it;
“4. That plaintiff’s right ankle and ankle joint were completely normal, freely moveable, with no swelling, pain or limitation of motion in the ankle or ankle joint;
“5. That there was a complete absence of swelling in plaintiff’s foot;
“6. That there was some slight limitation of motion in the toe; however, there was good motion of the joints in the rear of the foot which allowed the foot complete freedom to turn in and to turn out;
“7. That the heel bone was completely normal, in good alignment, and freely moveable;
“8. That a fusion of the cunieform bone gave rise to a slight limitation of motion of the forepart of the foot, however, this fusion causes no pain;
“9. That the joints in the rear of the foot which govern the motion of the foot from side to side were entirely normal and there was no limitation of motion in the rear of the foot or ankle;
“10. That extended walking would cause plaintiff to have a slight limp due to limitation of motion in the toes and the fusion of the cunieform bone; however, any limp due to the slight limitation of motion in the forepart of plaintiff’s foot would not cause any pain or disability in his hip or back and would not affect or extend the injury in his foot to his body generally;
“11. That there is no shortening of plaintiff’s right leg;
“12. That there is no pain or muscle spasm in plaintiff’s back;
“13. That plaintiff’s injuries are confined to his right foot;
“14. That the removal of a soft tissue tumor between plaintiff’s first and second toes was successful; no disability existed *220from the removal of the tumor, and the circulation in his foot was good and in no way impaired; and
“15. That the comparison of plaintiff’s right and left feet shows that plaintiff suffers from substantially the same amount of flat feet in both feet.”
Prior to asking the above quoted question and taking Bill of Exception No. 3, the doctor had testified that he first saw the respondent two days after the accident, and that he reexamined him about one month before the trial; that on the first examination, respondent had a “tremendously swollen right foot and ankle; particularly the foot. There were a number of fairly large blisters over the foot, and a few small abrasions and skinned looking places on the foot”. The doctor testified in complete detail as to his findings as the result of the second examination. This testimony, to a great extent, was the same as that which petitioner stated he expected to prove. However, some of the testimony is contrary to that set out in the Bill of Exception. For example: “There appeared to be considerable tenderness about the mid-foot when we tried to examine the foot and palpate the foot. It seemed to be particularly tender on top of the foot in the region of this operating scar;”
“Q. Does that picture there show any mass solidification of the' bones which makes them immovable?
“A. I think there is probably some fusion between these cunieform bones and the base of the third metatarsal. I think that those joints are obliterated or grown together.”
The doctor did not say that a fusion causes no pain. He did say that he could not find anything in the picture “that could be indicative of any cause for any pain.” He went on to say: “The fact that there is a little bit of deformity of one of the fractures may cause some pain in the foot. It doesn’t function completely normal. Therefore, it may be somewhat painful.”
The record in this case conclusively shows that petitioner suffered no injury by the Court’s refusal to permit the doctor to manipulate the foot. There is no evidence that the plaintiff’s foot was any different in May 1951, the date of trial, than in April 1951, when Dr. Butte last examined him. How could the manipulation of the foot in the presence of the jury add anything to the doctor’s testimony ? Proof that the doctor would be able to manually" forcé the foot' to move would not be proof that plaintiff did *221hot suffer pain in' the foot which affected other portions of his body.
The following hypothetical question, propounded to Dr. Butte, was based on facts in the case. It made no reference to motion or lack of motion in the foot. The question reads:
“* * * Now, Dr. Butte, assume that Arthur C. Hatton, 19 years of age, on November 29, 1949, was working at air conditioning — I mean working for a sheet metal works that was installing ducts for air conditioning in a tall ceiling room similar to this Courtroom, 15 to 20 feet high, something like that, and that a high scaffold that was being used to stand on to fasten the duct up to the ceiling had planks on it, and while the scaffold was being moved on the floor and while he was on the floor, a heavy timber weighing approximately 125 pounds, a board or plank fell off the scaffold and fell end down and hit him on top. of the right foot; assume that after that he was hospitalized for approximately a month in St. Paul’s Hospital, and was after that confined to bed for some period of time and then re-hospitalized about the 10th of April 1950, where he was hospitalized for about ten days in the Methodist Hospital, and then where he was treated for skin eruptions or whatever you calí it, from some medication used on his foot, and again hospitalized in the Methodist Hospital for a period of about ten days when an operation was performed on his foot that resulted in a scar about five inches long on top of the foot — and I am sure you saw the scar when you examined him last month — and that he, dúring all of that period of time after he got up from bed, used two crutches for approximately eight or nine months to move around when he did get up from bed after the operation, and that after putting down the crutches and walking without crutches, he had pain in his right foot which radiated through his right leg into his hip and in the low part of his back, and he has had that pain from and since that time on all attempts to walk, and he had no pain in his hip or back and no trouble with his hip and back before this accident happened, would you tell the jury that pain in his hip and back was not related to the accident that he had on November 29, 1949?”
“Q. My question is, with that related statement of facts, would you tell the jury that there is no connection between the pain in his low part of his back and hip with the injury to his foot?”:
' ' “A. I wouldn’t say there was no connection.”
*222This question sums up the evidence supporting plaintiff’s contention, and the doctor admitted that if such evidence were true, then a limp from pain in the foot would affect the respondent’s back.
Petitioner relies on the case of Kenny v. La Crone, 62 S. W. 2d 600, which held that when a person “voluntarily exhibits the injured part of his body to a jury during the trial of his case, he thereby waives the inherent inviolability of his person and immunity from examination by experts. In such case, speaking generally, the defendant may properly demand that the plaintiff submit to reasonable examination by reputable physicians of defendant’s selection, and the trial court’s refusal of the defendant’s motion therefor constitutes error.”
When you read this part of the holding, it seems to me it does not mean what the petitioner contends for. However, in my opinion, there can be no question as to what the Court meant when it went on to say the following: “But such error does not necessarily require a reversal. It is only when the error has apparently or probably resulted in injury to the defendant that the judgment should be reversed * * Then the court held that no injury had been made apparent or probable and affirmed the case. A writ of error was granted, 127 Texas 539, 93 S. W. 2d 397, but this point was not carried forward in the application, and therefore, was not discussed by the Court in its opinion of affirmance.
The judgment of the trial court and the Court of Civil Appeals should be affirmed.
Opinion, delivered February 11, 1953.