Regardless of whether the surgeon was consulted for the purpose of making him a witness or for the purpose of treatment, the doctor is entitled to relate his observations, the objective symptoms found, and opinions based thereon. See Texas State Highway Department v. Fillmon, 150 Tex. 460, 242 S.W.2d 172; Brotherhood of Locomotive Firemen and Enginemen v. Raney, Tex.Civ.App., 101 S.W.2d 863, wr. dis.; United Employers Casualty Co. v. Marr, Tex.Civ.App., 144 S.W.2d 973, wr. den.; Texas Employers Ins. Ass'n v. Wells, Tex.Civ.App., 207 S.W.2d 693, wr. ref., n.r.e.; Wininger v. Security Mut. Cas. Co., Tex.Civ.App., 120 S.W.2d 614, n. w. h.; National Security Life Cas. Co. v. Benham, Tex.Civ.App., 233 S.W.2d 334, wr. ref., n.r.e. To the extent that his testimony related to such matters, it was not hearsay and had probative force. As noted, the record shows no objection or motion which would direct the trial judge's attention to any inadmissible evidence, if the judge had concluded the witness was not a treating physician.
This rule is set forth in such cases as Texas General Insurance Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753; Texas Employers' Insurance Ass'n v. Ebers, Tex.Civ.App., 134 S.W.2d 797; Traders General Insurance Co. v. Chancellor, Tex.Civ.App., 105 S.W.2d 720, 722; Texas Employers' Ins. Ass'n v. Wallace, Tex.Civ.App., 70 S.W.2d 832; Gaines v. Stewart, Tex.Civ.App., 57 S.W.2d 207. On the other hand, where a doctor does not rely upon the statement of the patient other than to determine what part of the body is to be examined, and bases his opinion entirely upon his objective finding, his testimony is permissible. 17 Tex.Jur. 587, § 245; Texas Employers' Ins. Ass'n v. Wells, Tex.Civ.App., 207 S.W.2d 693; Wininger v. Security Mutual Casualty Co., Tex.Civ.App., 120 S.W.2d 614; Missouri, K. T. Ry. Co. of Texas v. Johnson, 95 Tex. 409, 67 S.W. 768; Ft. Worth Denver City Ry. Co. v. Hays, 62 Tex. Civ. App. 369, 131 S.W. 416; Missouri Pac. Ry. Co. v. Baldwin, Tex.Com.App., 273 S.W. 834; St. Louis Southwestern Railway Co. of Texas v. Pruitt, Tex.Civ.App., 157 S.W. 236; Texas Employers' Ins. Ass'n v. Fletcher, Tex.Civ.App., 214 S.W.2d 873; Texas Employers' Insurance Ass'n v. Ebers, Tex.Civ.App., 134 S.W.2d 797; Pacific Employers' Ins. Co. v. Brasher, Tex.Civ.App., 234 S.W.2d 698; Traders General Ins. Co. v. Milliken, Tex.Civ.App., 110 S.W.2d 108; Texas Employers' Ins. Ass'n v. Clack, Tex.Civ.App., 112 S.W.2d 526, affirmed 134 Tex. 151, 132 S.W.2d 399; Brotherhood of Locomotive Firemen and Enginemen v. Raney, Tex.Civ.App., 101 S.W.2d 863. Appellant next contends that the court erred in failing to sustain its challenge made to the prospective juror Lewis Leyendecker because the brother of Lewis Leyendecker was married to the plaintiff's wife's sister.
concerns the first of them, it fails, upon examination, to find that Dr. Ross based his complained-of testimony to any culpable extent upon any subjective or hearsay symptoms as detailed to him by the appellee upon the examination the doctor made of him; but, on the contrary, that his testimony was based upon purely objective symptoms; wherefore, the well-recognized rule appellants depend upon in this instance, under the citation of such authorities as Traders General Insurance Co. v. Chancellor, Tex. Civ. App. 105 S.W.2d 720, error dismissed; Texas N. O. v. Stephens, Tex. Civ. App. 198 S.W. 396; Texas Employers' Ins. Ass'n v. Wallace, Tex. Civ. App. 70 S.W.2d 832; Traders General Insurance Co. v. Wright, Tex. Civ. App. 95 S.W.2d 753, affirmed 132 Tex. 172, 123 S.W.2d 314, and others, does not apply to the developed facts, but instead, this cause is ruled by these authorities: Fort Worth D.C. Ry. Co. v. Hays, 62 Tex. Civ. App. 369, 131 S.W. 416; Wininger v. Security, Tex. Civ. App. 120 S.W.2d 614; Missouri, K. T. Railway Co. v. Johnson, 95 Tex. 409, 67 S.W. 768. The second complaint is not well laid, it is thought, either from a procedural or structural standpoint; in the first place, as this court reads the record, it fails to show that appellants requested the inclusion in the court's charge of a special charge of theirs to the effect that, if the jury believed from the evidence that appellee was simulating any of his injuries, such injuries should not be taken into consideration; in the second place, although it was strictly defensive matter, appellants did not plead any simulated injuries upon the appellee's part, so that no such special charge was required, even if the evidence alone did raise an issue of fact as to the existence of any such simulation; consequently, under these authorities, no prejudicial error upon the trial court's part is pointed out.
Moreover, appellant clearly errs in these attacks in so far as they question the qualifications of Dr. Corbett to give his opinion as an expert, either in answer to hypothetical questions or upon his own examinations of the appellee, upon his purely objective symptoms; this for the reason that, under the testimony, the doctor was clearly qualified as such an expert, wherefore such of his testimony as was based upon his general examination as a trained physician and surgeon was clearly admissible, and there is nothing in this record to show just what part of the criticised testimony was so based — that is, on purely objective symptoms — and what may have been based upon what the appellee and others told him, or purely subjective symptoms. This situation would, therefore, apparently bring this cause under the principle applied in Wininger v. Security Mutual Cas. Co., Tex. Civ. App. 120 S.W.2d 614, which holding, in turn, was bottomed upon Walker v. Great Atlantic Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170. It was shown that Dr. Corbett took the full prescribed college course in medicine, was a member of the Texas State Medical Society, had served as interne in the Memorial Hospital in Houston for one year, and had practiced his profession of a physician and surgeon in the City of e Houston for 15 years; these facts plainly the full prescribed college course in mediical witness, whose opinions were receivable as such, especially since appellant offered nothing whatever to the contrary; indeed, presumably at least, the learned trial court, under the testimony referred to, took judicial cognizance of the Medical Practice Acts, both civil and criminal, of Texas, under which Dr. Corbett could not have so practiced his profession without he the qualifications therein prescribed; see as Vernon's Texas Annotated Civil Statutes, Arts. 4495 to 4512, inclusive, and Vernon's Annotated