The Court of Civil Appeals affirmed. Tex.Civ.App., 366 S.W.2d 107. Ford had been employed by the Cooperative for a number of years, and he worked regularly eight hours a day for five days each week, Monday through Friday.
The established rule in this State provides that parties to a multi-party lawsuit are entitled to confer with each other in the exercise of peremptory challenges. Parker v. Traders General Insurance Co., 366 S.W.2d 107, 110 (Tex.Civ.App. โ Eastland 1963), modified on other grounds, 375 S.W.2d 714 (Tex. 1964). This rule was not changed by article 2151a, supra.
Rule 610(c), Tex.R.Evid. (1983), addresses the use of leading questions and provides that when a party calls a hostile or adverse witness, or one identified with an adverse witness, interrogation may be by leading questions. Although case law has held that the plaintiff in a compensation case is not allowed to treat the employer company or its employees as "adverse," Parker v. Traders General Ins. Co., 366 S.W.2d 107 (Tex.Civ.App.-Houston [1st Dist.] 1963, no writ), the witness in the case at bar was obviously both hostile, and associated with an adverse witness. Therefore under Texas Rules of Evidence 610(c), plaintiff's counsel should have been permitted to interrogate the witness by the use of leading questions.
The trial court was not in a position at the time of the selection of the jury to determine outside the pleadings whether appellees and Castleberry were antagonistic on any fact issue. Assuming, without deciding, that counsel for appellees and Castleberry collaborated in striking their jury list, the rule is that parties, which are entitled to separate strikes, may confer in making them. Parker v. Traders General Insurance Co., 366 S.W.2d 107 (Tex.Civ.App. 1963), 375 S.W.2d 714 (Tex. 1964), Brown Root, Inc. v. Gragg, Supra. Appellant filed fourteen special exceptions to appellees' trial petition.
Appellant also complains about the other parties' having collaborated in making their jury strikes. Parties who are entitled to separate strikes may confer in making them. Parker v. Traders General Insurance Co., 366 S.W.2d 107 (Eastland Tex.Civ.App. 1963), modified 375 S.W.2d 714 (Tex.Sup. 1964). We also overrule appellant's second point of error.
And under that principle it would not be reversible error in a workmen's compensation case to seat jurors who were claimant's fellow employees. King v. Aetna Casualty Surety Company, 373 S.W.2d 875 (Beaumont Tex.Civ.App., 1963, writ ref. n.r.e.), following Parker v. Traders General Insurance Company, 366 S.W.2d 107 (Eastland Tex.Civ.App., 1963, modified and reversed in part, but on other grounds, at 375 S.W.2d 714). By a grouping of points of error complaint is made because a medical witness for claimant, Dr. Robert E. Lee Gowan, was not permitted to state the history given him by claimant when before him for treatment as well as examination; and in not permitting him to state that the history given, coupled with findings upon examination, served as basis for his opinion that claimant's physical condition and disability were attributable to the event stated in such history.
Dr. Hood was not a party to this lawsuit. See Parker v. Traders General Insurance Co ., Tex.Civ.App., 366 S.W.2d 107, modified on other grounds, 375 S.W.2d 714, Sup.Ct. Appellant's third point of error is that of the trial court in refusing to grant appellant a new trial because of newly discovered evidence by appellant which showed that a witness subpoenaed by appellant was in fact under the employ of the appellee, which fact resulted in the trial court making erroneous rulings in regard to questioning by appellant's attorney and appellee's attorney, and the weight to be given these witnesses' testimony.
An independent contractor and his employees are not protected by the workmen's compensation insurance of the main contractor. 45 Tex.Jur. p. 416, ยง 40. There can be no question as to appellee's being bound by the testimony of J. L. and Harold Querner, to the effect that Avant was not an employee of Querner Truck Lines. The Querners were not parties to this suit, nor were they called as adverse witnesses. Parker v. Traders General Ins. Co., Tex.Civ.App., 366 S.W.2d 107. There is no evidence that Avant was a Texas employee of Querner Truck Lines, employed in Texas within the meaning of Sec. 19 of Art. 8306, supra.
The cases hold that assertions or statements made by claimants filed before the Industrial Accident Board are admissible where they are in conflict with the position taken at trial. Parker v. Traders & General Insurance Company, Tex.Civ.App., 366 S.W.2d 107, reversed in part, 375 S.W.2d 714, Sup.Ct.; Texas Employers Ins. Ass'n v. Davis, Tex.Civ.App., 228 S.W.2d 257. We can see no reason why an insurance carrier should not be subject to the same rule when its prior statements are inconsistent with the position taken at trial.
No error is presented by this assignment. Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, ref., w. m.; Parker v. Traders and General Insurance Company, Tex.Civ.App., 366 S.W.2d 107, judgment mod., Tex., 375 S.W.2d 714; Sellers v. Galveston, H. & S. A. Ry. Co., Tex.Civ.App., 208 S.W. 397, error ref. Appellant contends that his disability is caused by an injury to his low back.