United Cab Co., Inc. v. Mason

ON MOTION FOR REHEARING

The appellants complain that our holding in this case is in conflict with our prior holding in C.E. Duke’s Wrecker Serv., Inc. v. Oakley, 526 S.W.2d 228 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.). There, we held that the trial court committed reversible error in allowing the plaintiff to testify, in violation of Tex.R.Civ.P. 167a, that she had been willing to be examined by anyone chosen by the defendant about the nature of her injuries. 526 S.W.2d at 232.

The circumstances in C.E. Duke’s Wrecker Service, are distinguishable from those in the instant case. In that case, the plaintiff’s counsel asked his client if she would be willing to submit to an examination by any doctor whom the defendant might select, and the defendant specifically objected to the question. The trial court overruled the objection and permitted the plaintiff to answer “Yes.”

In this case, the plaintiffs failed to preserve the error by making a specific objection relating to the medical examination question. Thus, there is no conflict between our opinion in this case and our earlier decision in C.E. Duke’s Wrecker Service.

The motion for rehearing is overruled.