Summary
In Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646, 648, we said: "X-ray pictures, like photographs, maps, and diagrams, when material, are admitted in evidence on authentication which satisfies the court that the thing or person is fairly portrayed by the X-ray."
Summary of this case from Howell v. GeorgeOpinion
No. 32313.
November 16, 1936.
1. PLEADING.
Where amendment of declaration by ink interlineation was permitted by court without a motion in writing and without such amendment having been allowed by court and evidenced by order to that effect entered on minutes of court, declaration remained as originally written.
2. DAMAGES.
Allegation that "plaintiff's body was bruised and caused to suffer great nervous shock from which she was made seriously sick and she is permanently injured" held sufficient to permit admission of evidence that plaintiff's hip, back, shoulder, and spine were injured by violent impact of truck against plaintiff's automobile, where defendant did not request a bill of particulars, but pleaded to declaration.
3. EVIDENCE.
X-ray pictures, like photographs, maps, and diagrams, when material, are admissible on authentication which satisfies court that thing or person is fairly portrayed, and question of competency of X-ray pictures is a preliminary one, addressed to sound discretion of court.
4. EVIDENCE.
In personal injury action permitting chiropractor to exhibit an X-ray picture of a spine in conjunction with a human skeleton, and pointing out to jury that spine was not in normal position from base of neck to lower extremity of back, held error, where operator who made X-ray did not testify, chiropractor stated that a physician made X-ray, but chiropractor did not say that he or physician was skilled, there was no evidence as to proper machine, and there was no showing that condition of spine was worse after injury caused by collision.
5. AUTOMOBILES.
In action for injuries sustained when automobile in which plaintiff was riding was struck by truck, instruction which invoked for plaintiff aid of statute regarding excessive speed and prima facie rule of evidence held erroneous, where declaration was merely sufficient to state case of common-law liability for negligence (Code 1930, secs. 521, 5569, 5588).
6. PLEADING.
In action founded upon a statute, plaintiff must state in declaration every fact necessary to inform court that case is within the statute.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
Ford Ford, of Pascagoula, for appellant.
An amendment to the declaration was permitted during the trial in the court below, over appellant's objection, whereby a material change as to the injuries sued for was brought about.
There was no motion filed in the court below for leave to amend, the whole matter having been handled ore tenus. We respectfully submit that this was fatal error, being wholly inconsistent with the practice in this State.
Dantzler v. Gill, 153 Miss. 567; Lackey v. R.R. Co., 102 Miss. 339; Oliver v. Miles, 144 Miss. 857; Pigford v. Howse, 149 Miss. 692.
The court will readily appreciate the difficulty imposed on appellant by the unexpected change in the issue. It came there prepared to defend against the slight claim of injury, nothing definite, and it had no reason to apprehend that plaintiff would undertake to show that she had neck and back injuries, dislocation of spine, etc. It had no opportunity to prepare against that sort of claim. The trial court put appellant at a serious disadvantage. This predicament was made worse by the action of the court in permitting plaintiff to testify about other injuries different from those alleged in the declaration.
Bearing in mind that the declaration, neither as it stood originally nor as amended, said anything about injuries to the spine or dislocation of vertebrae, we submit that the court very clearly erred in permitting appellee to prove a case different from the one on which appellant had been summoned to defend. It is elementary that a litigant cannot allege one kind of case and then seek to prove and try to recover on another.
17 C.J. 1021; Arnold v. Maryville, 110 Mo. App. 254, 85 S.W. 107.
The witness, Cahill, was permitted, over appellant's objection, to testify about and exhibit to the jury certain X-ray pictures alleged to have been taken of plaintiff's spine. The record shows that the witness did not take these pictures and it was not shown that they were taken by a competent person nor by a capable machine. This was clearly erroneous we submit.
17 Cyc. 420, sec. D; Ligon v. Allen, 157 Ky. 101, 51 L.R.A. (N.S.) 842; 22 C.J. 916.
It was highly prejudicial to appellant to permit this witness to exhibit X-ray pictures and skeleton to the jury. It is a matter of common knowledge that a picture of the human spine, at best, is not a very attractive sight but is rather a horrendous spectacle. Only experts are permitted to testify about X-ray pictures or to interpret them because everyone knows that has had any experience in such matters that what appears to be a dislocation or deformity in the position or structure of a bone may be quite as nature intended it.
While we have every confidence that this case will be reversed on account of the first error assigned and alleged herein and for the other errors, in no event can we conceive how the verdict of one thousand five hundred dollars could be upheld in a case of this sort. Certainly such an amount of damages evinces passion or prejudice or bias on the part of the jury.
Beard v. Williams, 161 So. 750.
R.A. Wallace, of Gulfport, for appellee.
The driver of an automobile has not the right to a clear road, but must anticipate the presence of persons and vehicles thereon, and must at all times drive at such a rate of speed as will enable him to avoid injury to such persons and vehicles when they come under his observation.
Section 5569, Code of 1930; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Terry v. Smylie, 161 Miss. 31, 133 So. 662; G.M. N.R.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Spilman v. G. S.I.R.R. Co., 163 So. 445; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8.
The record discloses that the writer made the amendment to the declaration and added the specification of injuries to the plaintiff's neck and back, by interlineation made with pen and ink, months before the trial of the cause, and before issue was joined. While the writer did not, during the trial, and has not since, seen the carbon copy of the declaration furnished opposing counsel, it is evident that, when the writer decided to specify particularly the injuries to the plaintiff's neck and back and inserted the specification in the typewritten declaration, he failed to note the amendment on the carbon copy furnished opposing counsel; but, be that as it may, the amendment was made to the original declaration before issue was joined, and not during the trial, and the effect of the ruling of the court on the objections interposed by the defendant, appellant here, is to sustain that view, and which ruling of the court cannot now be lawfully disturbed, because such ruling by the court, during the trial, rested within the sound discretion of the court.
Even if it should be conceded that the amendment was made during the trial of the cause, the declaration as originally filed alleged facts sufficient to permit the evidence offered as to the injuries to the neck and back of the appellee.
Pigford v. Howse, 149 Miss. 692, 115 So. 774; Croco v. Oregon Short Line R.R. Co., 18 Utah 311, 54 P. 985, 44 L.R.A. 285; Montgomery v. Lansing City Elec. R. Co., 103 Mich. 46, 29 L.R.A. 287; City of Chicago v. McLean, 133 Ill. 148, 8 L.R.A. 765; B. R.G.R.R. Co. v. Harris, 122 U.S. 597, 7 Sup. Ct. 1286, 30 L.Ed. 1146.
The rule seems to be well nigh universal that a plaintiff is not required to allege all of the physical injuries which he sustained, or which may have resulted from the original injury, and if such injuries can be traced to the act complained of, and are such as would naturally flow from the injury, they need not be specifically alleged.
D. R.G.R.R. Co. v. Roller, 100 Fed. Rep. 738, 49 L.R.A. 77, 90.
The law does not require that the competency of the person taking an X-ray photograph, the condition of the apparatus with which it was taken, and the circumstances under which it was taken were such as to insure an accurate picture, be proved before the photograph is admitted in evidence. That is one way of verifying and authenticating such a photograph for introduction in the evidence but it is not exclusive.
Carlson v. Benton, 66 Neb. 486, 92 N.W. 600, 1 Ann. Cas. 159.
Any competent proof that such a photograph is a true representative renders such photograph admissible in evidence. When it is made to appear to the satisfaction of the trial judge that a witness, offering to testify to the correctness of an X-ray photograph, is competent to testify as to whether or not such a photograph is a true representation of the thing represented by it, it is within the sound discretion of the court to allow the witness to verify and authenticate such a photograph for the purpose of rendering it competent as evidence; and the action of the court is not subject to review, unless it is made to clearly appear that there was an abuse of such discretion. No such showing has been made in this case, and this specification of error must fall of its own weight.
Beard v. Turritin, 161 So. 688; Carter v. State, 59 So. 222; Jenkins v. Charleston Gen. Hosp. Training School, 90 W. Va. 230, 110 S.E. 560, 22 A.L.R. 332; De Forge v. N.Y., N.H. H.R.R. Co., 178 Mass. 59, 59 N.E. 669, 86 Am. St. Rep. 464; 22 C.J. 916, sec. 1118.
We feel confident that a careful consideration of all of the testimony in the record relating to the injuries sustained by the appellee will disclose that the amount of the verdict is most reasonable.
Argued orally by E.J. Ford, for appellant.
The appellee, in an action at law, recovered substantial damages from the Gulf Research Development Company, appellant here. In brief, the declaration alleged that, while the appellee was traveling in an automobile driven by her husband on a public highway, the appellant's truck was driven into the rear of her automobile with a considerable impact, and that she was thereby injured. The language as to negligence and injury used in the declaration is material in the consideration of this case, and is as follows:
"The plaintiff alleges that, on the said last mentioned date, she was riding in a Hupmobile Sedan Automobile, the same being her property, in a southerly direction in and upon United States Highway No. 49, the same being a public highway, at a point thereon about six miles north of the City of Gulfport, in Harrison County, Mississippi, the same being then operated in a lawful manner and at a lawful rate of speed, and with due regard for the traffic then in and upon said highway, and with due regard for her own safety, when and where the said Barber, acting for and on behalf of the defendants, and each of them, within the scope of his employment, and in furtherance of the business of the defendants, and each of them, wilfully, wantonly, recklessly, carelessly, and negligently, while in a vicious and ugly frame of mind, drove and operated the said truck of the defendants into and against the automobile in which the plaintiff was riding; and as a direct and proximate result there (of), the said automobile belonging to the plaintiff was damaged to the extent of $50.00, and the plaintiff's body was bruised, and caused to suffer great nervous shock, from which she was made seriously sick, and she is permanently injured.
"The plaintiff alleges that, as a direct and proximate result of the negligence of the defendants, and each of them, acting by and through the said Barber, the plaintiff has suffered and sustained damages, actual and punitive, in the sum of $3,000.00; that a cause of action has accrued unto the plaintiff against the defendants, and each of them, for the sum of $3,000.00, for which she sues and demands judgment with her costs."
It is conceded that the facts, on all the evidence, presented a conflict therein for the jury, as to negligence and the extent of the injury.
1. The first assignment of errors is as follows:
"1. The court erred in permitting appellee, plaintiff in the court below, to amend the declaration during the trial over appellant's objection, in this, to-wit, the only injuries complained of in the declaration before amended (record p. 4) was as follows:
"`Plaintiff's body was bruised and caused to suffer great nervous shock from which she was made seriously sick and she is permanently injured.'
"After trial of the cause began the declaration was amended by permission of court so as to insert after the word `bruised,' the following: `Her neck and back were bruised.' Said amended matter having been inserted at the time by ink interlineation on the declaration as shown by the record herein, and there was no motion filed nor order entered nor made by the court nor put of record nor entered on the minutes authorizing said amendment to be made."
It will be observed that the amendment was permitted by the court, having been written already in the declaration with pen and ink, without a motion in writing, and without such amendment being allowed by the court, and evidenced by an order to that effect entered on the minutes of the court. The amendment, therefore, was not effected, and the declaration stands as originally written. Gill v. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153. The appellee, however, insists that the evidence offered by her, to the effect that her hip, back, shoulder, and spine were injured by the violent impact of the motortruck against her car, was competent, under the allegation of the declaration, without the amendment. That allegation is: "Plaintiff's body was bruised and caused to suffer great nervous shock from which she was made seriously sick and she is permanently injured."
The appellant insists that this scant statement in regard to the injury did not apprise it of appellee's claim of injury to her back and spine, and that expert evidence offered concerning it came as a surprise.
Appellant did not request a bill of particulars, but pleaded to the declaration. In this respect the declaration was sufficient, we think, to permit the admission of the evidence objected to, under the authority of Pigford v. Howse, 149 Miss. 692, 115 So. 774; Alabama V.R. Co. v. Hanes, 69 Miss. 160, 13 So. 246, and authorities there cited.
2. It is next assigned as error that the court below permitted "the witness, Cahill, to testify about and exhibit to the jury, X-ray pictures, alleged to have been taken of plaintiff's spine, when it was not shown that said pictures were taken by a skilled person or proper machine."
Over the above objection, in substance, of appellant, Dr. Cahill exhibited an X-ray picture of a spine in conjunction with a human skeleton, and he pointed out to the jury that the spine was not in normal position from the base of the neck to the lower extremity of the back, in great detail.
The operator who made the X-ray was not offered as a witness. The attempted exemplification of that picture is found in the evidence of Dr. Cahill, an experienced chiropractor. He did not make the picture, but stated that Dr. Price did so at his request, and under his personal supervision, on June 27th, when he examined Mrs. Linder's spine; and that he knew them to be the pictures of her spine. Appellee contends that by this evidence the X-ray pictures were authenticated or exemplified. Appellant, contra, says this constitutes no authentication; that Dr. Cahill did not say he was skilled in the making of X-ray pictures, and did not so testify as to Dr. Price, nor was there any evidence as to a proper machine.
We agree with appellant that the X-rays were not authenticated in any manner known to the law, which may be accomplished in different ways. X-ray pictures, like photographs, maps, and diagrams, when material, are admitted in evidence on authentication which satisfies the court that the thing or person is fairly portrayed by the X-ray. There is no evidence here that these pictures were correctly made by a competent person with a proper machine. That evidence or its equivalent was necessary to render competent the X-ray pictures. The question is a preliminary one, addressed to the sound discretion of the court.
Photographs and X-rays of persons and places are admissible in evidence when relevant and not scandalous, under the same terms as maps and diagrams. In the case at bar there is no showing that the condition of the spine was worse after the injury caused by the collision; or that what the X-ray disclosed was of recent or long duration; and in our opinion the X-ray pictures were not authenticated. 22 C.J., p. 515, sec. 1117; also page 913; and as to maps, see 22 C.J., p. 910. The exhibition and demonstration of the X-ray pictures by Dr. Cahill should not have been permitted, for the reasons here stated.
3. It is next assigned as error that the court erred in granting instructions Nos. 1 and 2 on behalf of appellee, which read as follows: "The court instructs the jury for the plaintiff that if you find from a preponderance of the evidence that the territory contiguous to public highway No. 49 at the place where the collision occurred is closely built up by habitations where people dwell, then, the defendant was not authorized by law to operate its automobile truck at a greater rate of speed than twenty miles per hour, at that place on the said highway."
"No. 2. The court instructs the jury for the plaintiff that if you find from the evidence that the territory contiguous to public highway No. 49 at the place where the collision occurred was not closely built up by habitations where people dwell, still, the law required the defendant to operate its automobile truck upon the said highway at that point thereon at no greater rate of speed than was reasonable and proper, having due regard to the traffic and use of the said highway at that place at that time, and, in no event was the defendant allowed by law to operate its truck upon the said highway at a greater rate of speed than thirty miles per hour."
These instructions invoked for the benefit of appellee the aid of section 5569, Code of 1930, in one particular, and tended to augment appellee's damages in comparing her negligence, if any, with that of appellant, if any.
Referring now to the declaration, and considering it in connection with section 521, Code of 1930, it will be perceived that the declaration is barely sufficient to state a case of common-law liability for negligence, and does not in the slightest degree invoke the above statute as to liability for violation of the law in regard to excessive speed, and the prima facie rule of evidence as found in section 5588.
In this state the rule has ever been, as early announced by this court, that, "in an action founded upon a statute, the plaintiff must state in his declaration, every fact necessary to inform the court that his case is within the statute." Scott v. Peebles, 2 Smedes M. 546. In the case at bar there is not a mere omission, but an entire want of allegation that the negligence charged is based upon the statute. The instructions were clearly erroneous.
For the errors herein pointed out, the case is reversed and remanded.