HARTFORD ACCIDENT AND INDEMNITY COMPANY, Petitioner, v. George McCARDELL, Respondent, 369 S.W.2d 331

HAMILTON, Justice. This is a workmen’s compensation case in which the respondent sued for total and permanent incapacity resulting from an injury to his left hip and back caused by being kicked by a mule. The jury found respondent totally incapacitated for a period of five weeks, and inasmuch as petitioner had already paid that amount, judgment was entered that respondent take nothing. The Court of Civil Appeals has reversed and remanded. 360 S.W.2d 831. Hartford is petitioner here.

Petitioner contends that the Court of Civil Appeals was in error in holding, first, that the trial court was in error in overruling respondent’s special exception to the pleading; second, that the trial court erred in overruling respondent’s motion in limine; and third, that the trial court erred in admitting into evidence certain petitions, affidavits, notices of injury and claims for compensation arising out of five other accidents. We sustain petitioner on its first two points. We overrule petitioner on the third point and affirm the judgment of the Court of Civil Appeals. I.

Special Exception to the Pleadings.

The pleading in question reads as follows : “Answering further, if necessary, Defendant says that Plaintiff’s disability or incapacity, if any, was caused by some disease,, condition of health, some physical defect and/or some injury other than that made the basis of this suit, or some other cause or combination of causes unrelated in whole or in part to the alleged injury or disease alleged herein and made the basis of this suit.” Respondent specially excepted to this pleading on the ground that it was too general, and he requested that petitioner be required to plead specifically which injury or disease or physical defect petitioner relied on.

The trial court overruled respondent’s exception; the Court of Civil Appeals held this to be error. We sustain petitioner’s point of error complaining of this holding. The Court of Civil Appeals assumed that this pleading was intended as an allegation of facts raising an affirmative defense under

Article 8306, § 12c, Vernon’s Ann.Tex.St. It is difficult to tell from the pleading itself whether it was designed as a pleading of 12c defense or as a pleading of the inferential rebuttal defense actually submitted to the jury in Special Issue Number 11.

The two defensive issues submitted to the jury read as follows: “SPECIAL ISSUE NO. 11 “Do you find from a preponderance of the evidence, that the incapacity, if any, which the Plaintiff, George Mc-Cardell, has had or will have, has not been or will not be due solely to some other injury or disease or condition of his body, or a combination thereof, if any, unconnected with the injuries sustained, if any, on July 18,1957? “To which the Jury answered ‘It is due solely’. “If you have answered the preceding Special Issue No. 11, ‘It is not due solely’, and only in that event, then answer the following: “SPECIAL ISSUE NO. 12 “What percentage,, if any, do you find from a preponderance of the evidence, that the incapacity, if any, which Plaintiff, George McCardell, has had or will have, has not been or will not be due solely to some other injury or disease or condition of his body, if any, unconnected with the injuries he sustained, if any, on July 18,, 1957? “To which the Jury gave no answer.” Despite petitioner’s consistent argument that it was relying on

Section 12c, Special Issue No. 11 is a submission of an inferential rebuttal theory and cannot be considered a proper submission of

Section 12c. On the other hand, Special Issue No. 12 appears to inquire of facts which would establish

Section 12c rights. We are at a loss to know whether petitioner proceeded under one or both theories. Clearly the pleading does not inform us, and it is insufficient for that reason. Rule 45; Pabst v. Roxana Petroleum Corp., 125 Tex. 52, 80 S.W.2d 956. But respondent’s special exception did not raise that question and it is not now before the court. Rule 90. Regardless of which theory this pleading was meant to state, it was insufficient for want of specific allegations as to which of the other injuries caused the present incapacity.

The sufficiency of the pleadings in this case is governed by the principles applied by this court in Agnew v. Coleman County Electric Cooperative, 153 Tex. 587, 272 S.W.2d 877 (1954), where it was held that a general pleading of contributory negligence would entitle the defendant to submission of special issues inquiring of specific acts of negligence, unless attacked by special exception demanding allegations of the specific acts relied on. The pleading was insufficient and the trial court was in error in not sustaining respondent’s special exception.

However, we think the error was harmless for the reason that the trial court in entering judgment specifically disregarded the answer of the jury to Special Issue No. 11 and entered judgment on respondent’s issues. The Court of Civil Appeals has reversed the trial court and remanded for a new trial on account of the error of the trial court in overruling the special exception.

Rule 503 of the Texas Rules of Civil Procedure provides: “ * * * that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * Since the jury answered only one issue submitted under the defective pleadings, and the answer to that issue was disregarded by the trial court, we see no possible way in which the pleadings could have caused the rendition of an improper judgment.

There was no complaint that the reading of the defective pleading to the jury was harmful. We are cognizant of the apparent conflict of the answer to Issue No. 11 and the jury’s verdict that the respondent was totally incapacitated for a period of five weeks as a result of the injury sued on. But that question is not before us and we are not passing on the propriety of the trial court’s disregarding the answer of the jury to Issue No. 11 and entering judgment on the issues of respondent, the plaintiff below. II. Motion in limine.

The Court of Civil Appeals held that the trial court erred in not sustaining a portion of respondent’s motion in limine which sought to suppress evidence of claims, settlements or payments arising out of three other injuries. We sustain petitioner’s point of error complaining of this holding. We held in Bridges v. City of Richardson, Tex., 354 S.W.2d 366 (1962), that a party need not file a motion in limine in order to preserve the right to appellate complaint about erroneous admission of evidence. Proper objection made at the time of the offer of the evidence is sufficient.

We stated that the purpose of a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. It seems that the converse of our holding in the Bridges case is that although the overruling of a motion in limine may be error, it is never reversible error. If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered.

If they Were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal. In neither case — (1) questions not asked or evidence not offered, or (2) questions asked or evidence offered — should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error. III. Objections to Evidence.

Over respondent’s objections the trial court admitted into evidence petitions, notices of injury and claims for compensation ■and affidavits filed in courts and with the Industrial Accident Board in connection with five other injuries respondent had received. The Court of Civil Appeals held that the trial court erred in admitting these instruments because they were not admissions, they were offered merely to show that respondent had filed prior claims and suits and not for the purpose of proving a defense under

Article 8306, § 12c. Petitioner argues that the documents were properly let in as admissions for the purpose of impeaching respondent’s testimony and to prove the

Article 8306, § 12c defense. As proof of the rebuttal theory, the ultimate issue of fact to which these documents are said to be relevant is respondent’s issue on “producing cause”. Petitioner’s theory is that the mule kick injury was not the producing cause of the incapacity; it seeks to prove this affirmatively by showing that some other injury, or injuries, was the sole producing cause. As evidence of § 12c rights the ultimate issue is whether or not the other injuries contributed to the present incapacity.

Before discussing the law we wish to describe in some, detail the contents of the documents themselves and the circumstances surrounding their introduction into evidence. 1951 injury. First, a petition and affidavit filed in a district court in 1951 were offered early in the trial. Respondent admitted on direct examination that he had received a back injury in 1951 while lifting a log, but, he testified, the resulting incapacity kept him from work only one month. Respondent also testified that this was the only other back injury he had received.

On cross-examination respondent reaffirmed his testimony, and at that point petitioner offered the petition and affidavit. The petition — filed three months after the injury— alleged the accident, a back injury, and total, permanent incapacity. The affidavit contained essentially the same statements. Respondent’s attorney objected on the ground that these were hearsay and not an admission of any material fact.

After the petition and affidavit were let in, petitioner offered five other instruments — notices of injury and claims for compensation filed with the Industrial Accident Board in connection with this injury. These also contained descriptions of the accident, injury, and claims of total, permanent incapacity. Curiously, when these notices were offered respondent’s attorney said, “We have no objection.” 1955injury. As the trial progressed petitioner’s attorney asked respondent if he had not suffered another back injury in 1955 while working for a lumber company.

Respondent testified that only his shoulder and neck were injured in that accident. Petitioner then introduced a notice of injury and claim for compensation filed with the Industrial Accident Board in which respondent claimed total, permanent incapacity from injuries to his left shoulder, arm, chest, thumbs and the upper cervical region of his back. 1956 injury. Petitioner’s attorney asked respondent if he had ever had any other injuries to his left hip, and respondent answered that he had not. Petitioner was then permitted, over objection, to introduce a report by a Dr.

Markewich which had been filed with the Industrial Accident Board. This report tends to show that respondent had received an injury to his right hip in a 1956 accident. 1957 injury. Petitioner introduced a notice of injury and claim for compensation-filed with the Industrial Accident Board in which respondent alleged an injury to his left arm and shoulder caused by an accident which occurred subsequent to the mule kick. 1945 injury.

Toward the end of the trial petitioner’s attorney again asked respondent if he still insisted that the 1951 injury was. the only other back injury he had received; whereupon, respondent admitted that he remembered that he had suffered another injury in 1945 when he was hit on the back by a barrel. Respondent testified that this injury “did not amount to much” and that he had gone back to work within one week.

Over respondent’s objection petitioner was allowed to introduce an affidavit signed by respondent in which he stated that he had received a back injury, and that at the time of the affidavit — over two months later —he was still incapacitated and could not work. After further questioning, respondent testified that he had gone to see a lawyer about filing a claim but that he did not go-back to the lawyer after that first visit. Petitioner’s attorney then was allowed to-introduce a petition filed in a district court eight months later by that same lawyer.

This petition contains allegations of various injuries, including a back injury, and allegations of total permanent incapacity. The question of the admissibility of petitions, notices of injuries, claims for compensation and affidavits filed in courts or with the Industrial Accident Board in connection with other injuries than the one sued on in a compensation case has been quite a problem to the courts. We see no reason why the well-settled rules of evidence should not govern in these cases. The objection made to this type of evidence was that it was hearsay and prejudicial.

The obj ection is good unless it comes under some exception to the hearsay rule. The well-accepted rule is “evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement is inadmissible as hearsay.” McCormick and Ray, Texas Law of Evidence, Vol. 1, § 781, and cases there cited. One of the exceptions to this rule is an admission of a party against his interest in reference to a material matter.

An admission used in this sense “may be defined as any statement made or act done by one of the parties to any action or on his behalf which amounts to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims.” McCormick and Ray, Vol. 2, § 1121. As evidence, admissions by a party are a two-pronged assault on the admitter’s case. As a true exception to the hearsay rule they prove the truth of the facts admitted. Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54 (1958); McCormick and Ray, Texas Law of Evidence, Vol. 2, § 1121.

And since by definition they are inconsistent with the admitter’s testimony at trial, they tend to impeach his credibility. (For the distinction between impeachment and admissions of a party, see Edwards v. Osman, 84 Tex. 656, 19 S.W. 868 (1892), and McCormick and Ray, Vol. 2, § 1124.) While petitioner’s application states the argument in terms of impeachment, we have interpreted it to be an argument based on the principle that an admission of a party is an exception to the hearsay rule, and will so treat it.

In order for a document otherwise condemned by hearsay to qualify as an admission it must contain some statement relevant to a material issue in the case and inconsistent with the position taken by the party against whom it is introduced. In discussing the admissibility of these documents containing statements of the respondent we must keep in mind the issues to be determined. The issues in this case are clearly drawn. Respondent maintains that the injuries he received from a mule kick are the producing cause of his incapacity to labor.

Petitioner contends that respondent is suffering from no disability, but if he is, his incapacity to labor is the result of other injuries. The only reason evidence of other injuries is admissible at all in a compensation case is that it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed.

With reference to the 1945 injury described above, there is no question but that there is an inconsistency in the respondent’s testimony at the trial and the statement contained in his petition filed in court eight months after the 1945 injury, in which he states that he is totally incapacitated to labor and has been continuously since his injury, his testimony on the trial being that he was incapacitated for a period of a week and the injury did not bother him thereafter.

Respondent contends that even though the injury was a back injury similar to the one sued on in the instant case, and that the testimony is inconsistent with the statement in the petition with reference to the extent of the injury, that the inconsistency is not relevant to any issue in the case because there is no showing that the effects of the 1945 injury have persisted and now are affecting the incapacity claimed by the respondent. Respondent in this case contends that he is suffering from a herniated disc.

There was testimony in the case that the effects from this sort of an injury sometimes disappear for a time and then reoccur. We think the Court of Civil Appeals was in error in holding that the petition filed in connection with the 1945 injury was not admissible. Likewise, we hold that the Court of Civil Appeals was in error in holding that the documents introduced in connection with the 1951 injury were not admissible.

The inconsistency there was that plaintiff claimed he was incapacitated for only one month, whereas the documents introduced in connection with that injury showed that he was totally incapacitated for at least three months. This was also a back injury and much closer to the time of the injury here sued on than the 1945 injury. Consequently, we think the trial court did not abuse its discretion in allowing such documents to be introduced in evidence as being relevant to the principal issue in the case. As to the 1955 injury, respondent testified that only his shoulder and neck were injured in that accident.

Petitioner then introduced a notice of injury and claim for compensation filed with the Industrial Accident Board which showed an injury to the upper cervical region of respondent’s back. Petitioner contends that this was inconsistent with plaintiff’s testimony that his back was not injured in that accident and for that reason was admissible. One of the doctors testified that “upper cervical region of the back” meant the “neck”. We think this is not such an inconsistency as would come under the exception to the hearsay rule to allow the introduction of the documents as an admission against interest.

With reference to the 1956 injury, respondent testified to having had an injury to his right leg. Petitioner introduced over objection a report of history and physical examination on respondent by a Dr. J. Mar-kewich which had been filed with the Industrial Accident Board. We are at a loss to understand why this instrument was allowed to be introduced. There is no claimed inconsistency between the report and the respondent’s testimony. It is not even a statement of the respondent, therefore cannot be an admission.

It is pure hearsay and it was error for the trial court to admit it. ■ Petitioner contends that there is an inconsistency on another ground, that is, as to the claimed permanency of the 1956 injury. We reject that argument; the statement of claimed permanency is not susceptible of inconsistency with a statement of fact at the trial that the 1955 injury is not then affecting the incapacity sued on. The statement in 1955 that the incapacity would be permanent was nothing more than a prediction; it was not a statement of a fact.

If on Monday a man says, “On Tuesday it will rain”, and on Wednesday he says, “It did not rain on Tuesday”, we could not logically say that the former statement was inconsistent with the latter or that he admitted that it did not rain on Tuesday. The most we could say is that he had acknowledged that he had been in error. In other words, one cannot be said to have admitted the truth of a predicted fact; a prediction is not an assertion of the truth of the fact predicted.

Concerning the 1957 injury, plaintiff testified that he hurt his left arm and left shoulder while lifting a plate of sheet iron with three other men. Petitioner introduced notice of injury and claim for compensation filed with the Industrial Accident Board describing the injury almost exactly as the respondent had testified. There is no inconsistency in the testimony and the statement made in the notice of injury. Therefore it was not admissible as an exception to the hearsay rule, and it was error for the trial court to admit it.

We think the only purpose which could be served by introducing the documents concerning the 1955, 1956 and October, 1957 injuries was to show that plaintiff had filed the suit and filed claims before the Industrial Accident Board for other injuries. Viewing the record as a whole, it is clear that petitioner takes the position that the respondent is a malingerer in respect to the injury sued on, and furthermore that he is an habitual and chronic claimant. While the introduction of such documents does tend to uphold petitioner’s position, they are not admissible for that purpose under any rule of evidence.

It is evident that their introduction is harmful and prejudicial to respondent’s case. For that reason we overrule petitioner’s point complaining of the action of the Court of Civil Appeals in reversing and remanding the case for a new trial on account of the introduction of the documents in connection with the 1955, 1956 and October, 1957 injuries. Our affirmance of the Court of Civil Appeals’ holding is not, as respondent contends, inconsistent with the holding in St. Paul Fire & Marine Insurance Co. v.. Murphree, Tex., 357 S.W.2d 744 (1962).

In that case we held that it was not reversible error to exclude a petition filed in connection with an injury subsequent to the injury in question when the facts alleged (nature and extent of injury) in that petition had been admitted by the plaintiff in his testimony at trial. The court there chose to hold that the testimonial admission of the facts stated in the petition rendered harmless any error in excluding it.

The court might just as well have held, as we do here as to the documents relating to the 195S, 1956 and October, 1957 injuries, that because of the testimonial admission of the facts stated in the petition, there was no inconsistency, thus no ground for its being received as an admission. We affirm the judgment of the Court of Civil Appeals reversing and remanding the case. . “See. 12c.

If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the ‘Second-Injury Fund’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.

Acts 1917, p. 269; Acts 1947, 50th Leg., p. 690, ch. 349, § 1.”