American Nat. Ins. Co. v. Points

98 S.W.2d 1009

• Court: Court of Appeals of Texas
• Decided: November 12, 1936
• Docket: No. 3428
• Status: Published

Opinion

PELPHREY, Chief Justice.

This is the second time this case has been before this court. The former opinion appears in 81 S.W. (2d) 762, to which reference is here made for a statement of the nature of the case and the issues involved.

We have concluded that the case must again be reversed because of the manner in which the issue as to the disability of ap-pellee was submitted.

The issue in question reads: “Do you find from a preponderance of the testimony that the plaintiff suffered total and permanent disability by reason of the injuries, if any, he received on or about January 6th, 1933?”

Appellant objected to the submission of the charge on the ground that it combined two separate and distinct issues capable of being answered differently. We are of the opinion that the issue is duplicitous, and the assignment of appellant attacking its submission must be sustained. Brotherhood of Railroad -Trainmen! v. Wood (Tex.Civ. App.) 79 S.W.(2d) 665 (writ dismissed), and authorities cited.

The consolidation of the two cases was harmless.

The excluded statement of Dr. Stout was not admissible in evidence unless as an admission against interest. Appellee’s letter which accompanied the statement clea-rly informed appellant that he was not admitting the correctness of the statement, thereby destroying its effect as an admission.

The remaining matters complained of will probably not occur on another trial and will not be discussed.

The judgment of the trial court is reversed and the cause remanded.