Hurtado v. Texas Employers' Insurance Ass'n , 563 S.W.2d 360 ( 1978 )

MURRAY, Justice.

This is a workmen’s compensation case. Judgment was entered on the jury verdict that appellant’s injury of October 28, 1973 was not a producing cause of incapacity.

Appellant asserts by this appeal that the evidence is factually insufficient to support the jury findings to Question No. 3, that the injury of October 28, 1973 was not a producing cause of incapacity. His argument is based solely on the contention that the trial court committed error in admitting certain interrogatories and medical records into evidence. The appellant, in his brief, does not argue that the answer of the jury to Question No. 3 was factually insufficient if the interrogatories and medical records were properly admitted into evidence by the trial court.

Appellant, Manuel R. Hurtado, was injured on October 28, 1973, in the scope of his employment for the R. L. White Company. On the day of the accident the appellant was fixing a machine referred to as a “cherry picker,” when he fell about four or five feet to the ground. On November 9, 1973, appellant was hospitalized for over a week in the Memorial Hospital in Uvalde by Dr. Robert Scott for aggravated diabetes and rheumatoid arthritis, conditions for which he had been treating appellant for several years. Dr. Scott filled out a hospitalization claim form indicating that the November 9th hospitalization was not due to an injury at work. Dr. Scott referred appellant to a San Antonio rheumatologist, Dr. Hempel. Dr. Hempel brought in a surgeon, Dr. Livesay, who performed surgery on appellant to relieve a spinal obstruction and at the time of the operation Dr. Live-say observed no disk rupture. Dr. Livesay attributed appellant’s problems to an obstruction in the spinal column, the effects of diabetes on the kidneys, the effect of diabetes on the nervous systems, and rheumatoid arthritis, and that neither the spinal obstruction nor the surgery to relieve it was caused by any incident, accident, or injury.

At the trial appellant offered into evidence the answers to written interrogatories of Dr. Carl H. Hempel, answers to written interrogatories of Dr. Robert Scott, medical records of Memorial Hospital, Uvalde, Texas, and medical records of the Santa Rosa Hospital, San Antonio, Texas. It was stipulated by the parties that there would be no necessity of formal proof of such records under the Business Records Act. Appellant vigorously objected to the four medical records because they contained inadmissible letters, notes, opinions, guesses, conjecture, and speculation and that it was incumbent on appellee to sift through the exhibits and segregate the inadmissible part from the admissible part. After a lengthy discussion outside the presence of the jury, the trial court overruled appellant’s general objection and admitted the four documents into evidence. Thereafter appellant made no specific objections to any particular part of the four documents. The question is, “who has the burden of separating the admissible portions of a proffered exhibit from the inadmissible portions?”

We hold that the trial court has some discretion in deciding which party should specifically point out to the court that part of the record that is objectionable and that part which is not objectionable. We believe this rule has been established by our Supreme Court in the case of Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944); 1 C. McCormick & R. Ray, Texas Evidence § 25 at 24 (2d ed. 1937). In Brown & Root our Supreme Court stated on page 341, “[a] general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible. * * Merely to object to an instrument on the ground that it contains hearsay statements when a portion of the instrument is clearly admissible in evidence, without pointing out the statements claimed to be hearsay, and leveling an objection specifically thereto, does not invoke a ruling by the court on the question of the admissibility of the hearsay statements.” It is equally well settled that where evidence is offered as a whole, only a part of which is admissible, the court does not commit error in sustaining an objection to such testimony and in such case the party offering the testimony would have to separate the admissible from the inadmissible part. Eubanks v. Winn, 469 S.W.2d 292 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); Jack Cane Corp. v. Gonzales, 410 S.W.2d 953 (Tex.Civ.App.—San Antonio 1967, no writ).

We hold, after an examination of the entire record, that the jury’s failure to find that appellant’s injury of October 28, 1973 was a producing cause of incapacity is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the trial court is affirmed.