The evidence objections referred to, supra, are likewise thought to have been inept; as concerns the testimony given by the witness Jewel Berner about the records of the Jefferson Davis Hospital, it was a public institution subject to the provisions of the statutes of the state covering its creation, operation, and maintenance; it having been shown that the records the witness testified about were the original ones of that institution, made in the regular course of its conduct by the nurses, internes, and doctors serving it in such capacities at the time, that they were regularly kept as a part of the hospital's public records and were under the direct supervision of the witness herself, who was the record librarian of the hospital, the testimony was properly receivable. Vernon's Ann.Civ.St. art. 4437a; R.S. arts. 4477 (as amended [Vernon's Ann.Civ.St. art. 4477]), 4484, 4485; 22 C.J. pp. 801, 802, § 914; Dallas Coffee Tea Co. v. Williams (Tex.Civ.App.) 45 S.W.2d 724; Lokey v. State (Tex.Civ.App.) 291 S.W. 966; Shaw v. American Ins. Union (Mo. App.) 33 S.W.2d 1052. Mrs. Saladiner was merely permitted to testify that there was a difference between appellee's physical appearance at the time of the trial and what it had been prior to April 20 of 1931, she having had occasion to observe his appearance over a long period of time, inclusive of those dates, especially as affected his physical condition during that long period; in the circumstances, this opinion of hers was clearly admissible. 19 Texas Jurisprudence, pp. 354-357, § 231; Duerler Mfg. Co. v. Eichhorn, 44 Tex.Civ.App. 638, 99 S.W. 715.

The language used in that opinion, to the effect that the state had a right of action under the common law, will be regarded as dictum, and therefore not binding upon this court. The only other case in this state involving this question is that of Lokey v. State (Tex. Civ. App.) 291 S.W. 966, in which it was held, as in the Luder Case, simply, that the state could recover under the 1911 statutes, apparently in force when the judgment was rendered therein by the trial court, without pursuing the specific statutory procedure therefor. In that case, while citing the Luder Case to support the holding that the statutory remedy need not be pursued in enforcing the statutory right, the court expressly refrained from passing upon the question of the common-law right of the state to reimbursement.