Opinion
No. 34285.
December 23, 1940.
1. EVIDENCE.
In action on disability policy, question addressed to physician, "In your opinion as a physician, would you say" that insured "is or is not totally and permanently disabled," was incomplete for failure to ask what insured was disabled from doing.
2. EVIDENCE.
In action on disability policy, opinion of physician, that insured suffering from hardening of arteries and high blood pressure was totally and permanently disabled from performing any work, was admissible, since the effect of work on a person so suffering is not a question which layman unacquainted with medical matters can satisfactorily decide without assistance of expert medical testimony.
3. TRIAL.
The maxim, "Falsus in uno, falsus in omnibus," deals only with weight of evidence, and instruction based thereon tells jury what force to give to a falsity after evidence has shown existence of falsity.
4. TRIAL.
The giving of instruction to entirely disregard entire evidence of witness who has knowingly and maliciously sworn falsely to any material fact was reversible error, as violating statute prohibiting judge from charging jury as to weight of evidence (Code 1930, sec. 586).
5. EVIDENCE.
Evidence by means of motion pictures exhibited to trial jury is admissible where accuracy with which pictures will reproduce the scenes photographed is proved.
6. EVIDENCE.
In action on disability policy by insured allegedly suffering from hardening of arteries and such high blood pressure that work would endanger his life, motion picture of insured at work on highway was admissible, where picture was taken by competent motion picture photographer with motion picture camera of standard make in good condition, and accurately reproduced the scene photographed, including speed at which insured was working, and film was in the same condition as when made.
ETHRIDGE, J., dissenting in part.
APPEAL from the circuit court of Jones county, HON. T. PRICE DALE, Special Judge.
Wells, Wells Lipscomb, of Jackson, and Welch Cooper, of Laurel, for appellant.
The court erred in overruling the defendant's objection to the following question propounded to Dr. J.C. Butler by the plaintiff: "Now, doctor, in your opinion as a physician, would you say that he is or is not totally and permanently disabled?" And erred in permitting the witness to answer said question.
U.S. v. Spaulding, 55 Sup. Ct. 141, 79 L.Ed. 617.
The court erred in granting the following instruction for the plaintiff: "The court instructs the jury for the plaintiff that if you believe that any witness has knowingly and maliciously sworn falsely to any material facts, then you may entirely disregard the entire evidence of such witness."
An instruction of this character must always contain the full equivalent of the limitations that such false swearing was "wilfully, knowingly, and corruptly done." We respectfully submit that the word, "corruptly," or its equivalent, was entirely left out of the instruction. This is fatal error.
W.T. Farley, Inc., v. Smith, 130 So. 478; White v. State, 52 Miss. 216; Vicksburg M.R. Co. v. Hendrick, 62 Miss. 28; Sardis D.R. Co. v. McCoy, 85 Miss. 391, 37 So. 706; Davis v. State, 89 Miss. 119, 42 So. 541; Wofford v. State, 99 Miss. 759, 56 So. 162; D'Antoni v. Albritton, 126 So. 836; Pickwick Greyhound Lines, Inc., v. Johnson, 134 So. 566.
The court erred in refusing to allow the defendant to show in the presence of the jury the moving pictures of the plaintiff at work, and in sustaining the plaintiff's motion to exclude the evidence of the witnesses Talley and Richard, and instructing the jury to disregard such evidence.
Gulf Research Development Co. v. Linder, 170 So. 646, 177 Miss. 123; Beard v. Turritan, 161 So. 688, 173 Miss. 206 ; Favre v. L. N.R.R. Co., 178 So. 327, 180 Miss. 843; Calif. Life Ins. Co. v. Stossel (Fla.), 179 So. 163; State v. United Railways, 159 A. 916, 162 Md. 404, 83 A.L.R. 1307; Phillipi v. N YC. St. L.R. Co. (Mo.), 136 S.W.2d 339; Owens v. Hagenbeck-Wallace Shows Co. (R.I.), 192 A. 158; Boyarsky v. Zimmerman Corp., 270 N.Y.S. 134, 240 App. Div. 361; Rogers v. City of Detroit, 286 N.W. 167, 289 Mich. 86; Pacific Mutual Life Ins. Co. v. Marks (Ala.), 161 So. 543; Commonwealth v. Roller, 100 Pa. Super. 125; People v. Hayes, 71 P.2d 321; 21 Calif. App. 2d 320; Wigmore on Evidence (3 Ed.), p. 283, sec. 798 (a); Moving Pictures in Evidence, 27 Ill. Law Rev. 424; State v. Knight, 43 Me. 132.
The only reason that the trial court gave for not allowing the pictures to be shown was that in his opinion they would be prejudicial to the plaintiff. We respectfully submit that any evidence that would tend to show that the plaintiff was not totally and permanently disabled would be prejudicial to the plaintiff in the same manner that this evidence was prejudicial.
The cases hereinabove cited constitute all of the reported cases that we are able to find on the point under discussion. From an analysis of these cases, together with a careful study of the articles and texts above cited, we think that certain general rules may be deduced as to when and under what conditions pictures may be used in evidence, as follows:
(1) It should be shown that the operator who took the pictures was a competent and experienced operator.
(2) It should be shown that the camera used was a standard camera, and how it worked.
(3) The number of pictures which passed per second before the lens to create "normal speed," and thus accurately record as to the speed the movements of the objects photographed should be shown.
(4) Weather conditions under which the film was taken should be shown.
(5) The speed at which the camera was set and its distance from the object should be shown.
(6) It should be shown that the finished film, when projected on a screen, shows exactly what the operator saw with his naked eye when the picture was taken.
(7) It should be shown that the film was developed by an experienced and skilled processor, and that in the process of development it was not mutilated, cut, touched up, or changed in any manner.
(8) The party offering the pictures should show that a projector and screen are available, and an expert operator is available. It should also be shown that when set at the proper speed the projector will project on the screen exactly what the operator saw with the naked eye when the film was taken.
The moving picture is not subject to human fallibilities. If the film is properly and honestly taken, and properly and honestly projected, it shows exactly what was seen with the naked eye by the operator. It is not subject to lapses of memory, prejudice, or plain perjury. The film does not forget and, if taken and projected as above set forth, is not subject to suggestion by counsel or other witnesses.
The trial court committed palpable error in refusing to allow this motion picture to be shown to the jury, and for this error this case should certainly be reversed and remanded.
Albert E. Easterling, of Laurel, for appellee.
The court was not in error in allowing Dr. Butler to testify that, in his opinion, the plaintiff was totally and permanently disabled.
L. N.R. Co. v. Steward (Ala.), 29 So. 562.
Opinion evidence of experts is competent evidence, and it appears certain that the opinion of the physician should be admitted where the facts upon which the opinion or the conclusion is based are too delicate, minute, or too numerous to be presented to the jury, and where the jury is not competent to decide without assistance from someone more skilled than they. Physician's or other expert evidence is always given to the jury for the purpose of enlightening them upon matters of which their knowledge is limited.
U.S. v. Spaulding, 55 Sup. Ct. 141, 79 L.Ed. 617, is a case were there was a dispute between expert evidence. In the case at bar, there is no contradictory evidence as to the disabilities of the plaintiff.
The falsus in uno, falsus in omnibus instruction must always contain the full equivalent of the limitation that such false swearing was willfully, knowingly, and corruptly done.
W.T. Farley, Inc., v. Smith, 130 So. 478.
From the actual language of this case the instruction must necessarily contain the "equivalent of the limitation." I submit that the instruction complained of not only contains the "equivalent of the limitation" but imputes even more. The word maliciously not only would impute the words corruptly and willfully, but would impute hatred, and it appears unquestionably that if the jury would believe a witness maliciously swore falsely, they would believe he had sworn corruptly and willfully falsely and with hatred.
There is no error in the exclusion of the moving pictures from the jury for the following reasons:
(1) They were immaterial to the issues in dispute; (2) Their admissibility should be determined by the trial judge; (3) They were irrelevant and too remote from issues in dispute.
The record discloses that the moving picture only portrays what occurred during four or five minutes out of a space of three years. If offered for evidence for the purpose only of showing that he worked four or five minutes during the three years, it certainly had no purpose to serve, as there was no dispute that the plaintiff worked on the WPA, and certainly it is obviously the law that admissions have the effect of excluding evidence as to the facts admitted and confining the litigants to the point in dispute. As stated, there was no dispute as to whether or not the plaintiff worked. Evidence to be admissible should bear in a fairly direct way upon the issues and beyond any doubt should be carefully scrutinized where it is likely to excite emotion or prejudice.
In the case at bar, there is no dispute as to whether or not the plaintiff worked, the dispute being, was he totally and permanently disabled. Direct testimony was available both to plaintiff and defendant to properly present material facts to the jury.
10 R.C.L. 927, sec. 91; O'Meara v. Haiden, 60 A.L.R. 1381; Birmingham Baptist Hospital, Inc., v. Blackwell (Ala.), 128 So. 389; 22 C.J. 169, sec. 95.
Counsel for defendant in his argument places moving pictures and their admission as evidence in the same category with photographs and X-rays, and indeed they should be, except that they deserve more careful scrutiny. However, a careful review shows that not all photographs are admissible in evidence, in fact they are more often refused than admitted. Further, all of the authorities are agreed, as far as we are able to ascertain, that the admission of pictures, X-rays, or diagrams should be at the discretion of the trial judge. In fact, all authorities stress that point. This appears obviously to be the law for the reason that the trial judge, observing the jury, hearing the evidence, etc., is more able to ascertain and determine evidence which is material, relevant, and that which will not prejudice the jury in favor of one party or another, it being his duty to admit that evidence which in his opinion may properly promote justice.
Le Barron v. State, 65 So. 648; 3 Jones, Commentary on Evidence, sec. 381, 22 C.J. 921, sec. 1125; State, Use of Chima, v. United R. Electric Co., 83 A.L.R. 1307; Sorrell v. Scheuer (Ala.), 96 So. 216; Gulf Research Development Co. v. Linder, 175 So. 804, 179 So. 163; Owens v. Hagenbeck-Wallace Shows Co., 192 A. 158; Rogers v. City of Detroit, 286 N.W. 167, 289 Mich. 86, 2 R.C.L. 247-255, secs. 205, 207; Phillipi v. N.Y.C., etc., R. Co., 136 S.W.2d 339.
In the case at bar the facts intended to be proved were admitted, and at best the admission of the pictures would be the admission of cumulative evidence to prove an undisputed fact, with evidence which in itself was irrelvant.
It is too remote, in that it covers such a brief space during the three years the plaintiff alleges to have been disabled. Counsel for defendant points out that photographs and X-rays have been admitted as evidence. That is true in some instances, but the courts have been very careful in admitting such as evidence, and from the numerous authorities, X-rays and photographs appeared to be admitted only when they revealed that which cannot otherwise be shown or proved.
Selleck v. Janesville, 104 Wis. 570; Hampton v. Norfolk W.R. Co., 120 N.C. 534; Atlantic Coast Line R. Co. v. Campbell, 139 So. 886; Karr v. State (Ala.), 17 So. 329; 10 R.C.L. 925, sec. 87; Brett v. State, 47 So. 781; Ford v. State, 23 So. 710; 22 C.J. 914, sec. 1115; Rodick v. M.C.R.R. Co., 190 Me. 530, 534.
The courts, and most especially the appellate courts, of this country have striven unceasingly and untiringly to keep our courts clear from corruption and fraudulent evidence. To admit moving pictures under all circumstances in court would open up an avenue for gross corruption of evidence which, to the lay mind and to those unskilled in the moving picture business, would be inconceivable. The only way to prove the corruption of such evidence would be by an expert. In this case, we have no accusations to make against any witness, as that is to be determined solely by the jury. However, we will state, should a moving picture camera be placed in the hands of an expert who should happen to be unscrupulous, a fraud could be perpetrated upon the court with no means whatever of deception or detection.
The appellee recovered a judgment against the appellant on a disability insurance policy providing payments to the insured thereunder to begin if and when the insured becomes "wholly and permanently disabled by accidental injury or disease, before attaining the age of sixty years, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit." The evidence was in conflict as to whether the appellee had become permanently and wholly disabled within the meaning of the policy. Only three of the assignments of error require a response thereto.
1. A physician who had examined the appellee was permitted to answer (which he did in the affirmative) the question: "In your opinion as a physician, would you say that he is or is not totally and permanently disabled?" The form of the question aside, it was incomplete in that it fails to ask what the appellee was disabled from doing. But that also aside, since the judgment must be reversed on other grounds, we come to the admissibility of the opinion on the assumption that it referred to the appellee's ability to perform "any work," as other testimony of the witness indicates that it does.
The answer of the witness was based on the fact that his examination of the appellee disclosed that he was suffering from hardening of the arteries and high blood pressure to such an extent that work would endanger his life. The effect of work on one suffering as the witness said the appellee was is not a question which a layman unacquainted with medical matters can satisfactorily decide without the assistance of expert medical testimony; consequently, the opinion of this witness, with the hereinbefore mentioned assumption, was properly admitted. 29 Am. Jur. Insurance, Section 1499; Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125, and cases cited in note thereto in 111 A.L.R. at p. 603; 7 Wigmore on Evidence, 3rd Ed., Section 1975. Compare United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617, and the criticism thereof in Wigmore on Evidence, op. cit., and note to 111 A.L.R. at p. 604.
2. The court below charged the jury for the appellee "that if you believe that any witness has knowingly and maliciously sworn falsely to any material fact, then you may entirely disregard the entire evidence of such witness." This instruction omits the word "corruptly," which, or its full equivalent, this Court has several times said must appear therein; whether the evidence must be corruptly given appears by implication or is embraced within the word "maliciously" we will not pause to inquire, for the instruction should not have been given even though the word "corruptly" had appeared therein. The exploded (McDonald v. State (Miss.), 28 So. 750), dangerous (Bell v. State, 90 Miss. 104, 43 So. 84), worthless (3 Wig., Ev. (3 Ed.), Sec. 1008), and pernicious source of new trials (cf. Turner v. State, 95 Miss. 879, 50 So. 629) maxim, "falsus in uno, falsus in omnibus," on which the instruction is based, deals only "with the weight of evidence. The jury are told by it what force to give to a falsity after the evidence has shown its existence." Wigmore, op. cit. To include it in an instruction to a jury, therefore, is in direct violation of Section 586, Code 1930, which provides that: "The judge . . . shall not . . . charge the jury as to the weight of evidence." That such an instruction violates that section has not heretofore been taken into consideration by this Court when passing on instructions based on the maxim.
3. The appellee is suffering, according to his testimony, from hardening of the arteries and such high blood pressure that work would endanger his life. At the time of the trial in the Court below, he was and had for some time been doing road construction work for the Works Progress Administration. According to his evidence, the work was of a light character, requiring but little physical exertion. According to the evidence for the appellant, it was heavy work — with pickaxe and shovel.
Sometime before the trial, an agent of the appellant made a motion picture of the appellee at work on a highway, which picture, according to the appellant's evidence, discloses he was then at hard labor, shoveling gravel. The picture was shown to the judge out of the presence of the jury, who, on objection by the appellee, refused to let it be shown to the jury, assigning as a reason therefor "that for the jury to see the picture would be to create prejudice . . . it would not be the fair thing to do." The picture, according to the undisputed evidence, was taken by a competent motion picture photographer with a motion picture camera of standard make in good condition, and would accurately reproduce the scene photographed, including the speed at which the appellee was then working. The film of the picture was made by an expert therefor and was in the same condition then as when made. It was to be thrown on a screen by a projector of standard make in good condition, operated by a competent operator.
Evidence by means of motion pictures exhibited to a trial jury, while novel, is admissible when the accuracy with which they will reproduce the scenes photographed is proven, — somewhat like the accuracy of an ordinary photograph is proven. 3 Wig. Ev. 3rd Ed., Sec. 798a. This record does not disclose whether, in order to exhibit the picture to the jury, it would have been necessary to darken the courtroom; or if such was necessary, that any reason then existed that would render it improper or impracticable for the court to sit temporarily in darkness, in the absence of which this picture was admissible in evidence. This question has arisen in other jurisdictions, but no good purpose would be served by discussing the cases dealing therewith as the principles governing its solution are simple and well established. All we have here is the application of old principles to new facts.
We are not dealing with a picture of a scene reconstructed and staged for the purposes of the picture by actors according to their recollection of the original, as to the admissibility of which we express no opinion.
Reversed and remanded.
I concur in the view that the testimony of the physician was properly admitted, and that it was expert testimony, concerning which the average layman would not be qualified to judge. The opinion of a physician may be very helpful in suits involving questions of physical disability.
The instruction quoted in the majority opinion, telling the jury that, "If you believe that any witness has knowingly and maliciously sworn falsely to any material fact, then you may entirely disregard the entire evidence of such witness," is inaccurately drawn, but I doubt if it would be reversible error; for the words used carry substantially the idea involved in using the word "corruptly." While not exactly synonymous, the words "maliciously" and "corruptly" each convey the idea that the purpose of the witness in testifying was unlawful, unjustifiable and false. To be corrupt, swearing is not necessarily the result of bribery, or a pecuniary consideration to the witness so swearing; a witness swears corruptly when he knows that what he swears is false, and does it with an unlawful motive or purpose.
However, I would not dissent if the opinion had stopped with condemning this instruction — the safe way is to follow the precedents on this proposition, using all the words required in such instance, instead of experimenting with words that may be deemed substantially synonymous. But I must emphatically dissent from the holding that the giving of this instruction is error in any case, and that it violates section 586 of the Code of 1930, as being on the weight of the evidence within the meaning of the prohibition in that section. The statute (section 586 of the Code) was not intended to prevent the giving of cautionary instructions, nor to inform the jury as to its power to disregard the testimony of a witness who, the jury finds, has committed perjury in the particular case. The statute has been on the books for many years, and the principles have been applied in many cases. What the statute is designed to prohibit is the giving by the trial judge of his opinion on the issues and facts involved. It was designed to leave the jury free to act on its own opinion as to the weight and credibility of the testimony. It is essential to the administration of justice that the jury be told of their power to disregard the testimony of a witness who has willfully, knowingly, corruptly and falsely testified in regard to a material fact in issue. Under a rule which we have applied in our decisions, facts must be accepted as true when not disputed, and which are not unreasonable or impossible on their face, and are not contradicted by other witnesses.
A witness may testify as to one essential fact in a lawsuit along with other witnesses; and may also be the sole witness in regard to other material facts, or to a number of essential facts; and when he has willfully, knowingly, and corruptly given false testimony, this surely would be sufficient reason to disregard his testimony on other facts where he might be the sole witness speaking.
The term "maliciously" when coupled with the term "falsely" carries the idea of corruption. We shall not pursue the definition of words here involved, because the majority opinion pretermits the question of whether these words are the equivalent of "corruptly."
As to the introduction of motion pictures in connection with the issue of physical disability to the extent of being unable to pursue a gainful occupation without endangering health or life — this is a question new to this state. Motion pictures are so susceptible of being deceptive, presenting a fraudulent picture of the true situation, that I think it doubtful evidence. In my view, a better practice would be to exclude them as evidence, unless made with notice to the adverse party, or in the presence of such party, with the right to also have present witnesses and counsel, to see that the true situation is pictured.
In the record it is admitted by witnesses for the defendant, in whose behalf the moving picture was offered in evidence, that the motion of the picture can be accelerated or slowed down materially, in order not to present the real situation; also, that the wheels of an automobile in motion may be shown as turning backward instead of forward. Even without such proof, nearly everyone has witnessed the operation of moving pictures in slowing or speeding motion, and performing many tricks, such as falling off a precipice, going through buildings with an automobile, and various other illusions which serve to show the possibility of inaccuracy in such evidence.
I think it would be better to leave this matter to be dealt with by the legislature, where limitations would probably be placed upon the conditions under which such evidence might be useful to the public.
The State, to Use of Chima, v. United R. E. Co., 162 Md. 404, 159 A. 916, 83 A.L.R., at page 1315, in the case note thereto, the learned author said: "While the present subject is one which seems likely to be of considerable judicial interest in the future, a search has disclosed but few cases in which the appellate courts have held either that moving pictures should not be shown to the jury as evidence, or that there was at least no abuse of discretion in excluding such pictures as evidence."
In the case of De Camp v. United States, 56 App. D.C. 119, 10 F.2d 984, 985, it was held that it was not error to exclude moving pictures offered in that case, a criminal prosecution for conspiracy to use the mails fraudulently. The moving pictures were there designed to show the actual process of manufacturing glass caskets, which the government contended could not be done; and which contention was the basis of the charge of fraud. In the course of its opinion the Court said: "A motion picture does not of itself prove an actual occurrence. The thing reproduced must be established by the testimony of witnesses. While the photograph may be a proper representation of the thing produced, yet the testimony of witnesses is required to verify the production. . . . it was for the trial court to determine whether a photograph or moving picture such as was offered, was sufficiently verified as a proper representation of the process of manufacture as it actually existed. This court will not assume, on this record, to determine this question, . . ."
In Gulf Life Ins. Co. v. Stossel, 131 Fla. 268, 175 So. 804, 805, the Court said:
"Appellant devotes the major portion of its brief to the proposition that in order to recover in this case, it is essential that appellee, while the policies were in full force, furnish due proof of his disability. It is alleged that he failed to do this.
"Unquestionably, an insurance company may impose such a condition as a prerequisite to recover, and when so imposed, they have been upheld, but in a prior consideration of this case, we held that the policies were in force at the time of the accident and that they did not in terms require notice of claim and proof of disability before the lapse of the policy. Stossel v. Gulf Life Ins. Co., 119 Fla. 715, 161 So. 835. This holding would seem to be the law of the case and a complete answer to the latter question. Appellant in other words does not bring itself within the rule relied on.
"In support of its contention, appellant exhibited here and in the court below some moving picture films. We have not before been called on to rule on the challenge to this class of evidence. We hold that such evidence is admissible, but to be so, it must be produced under the direction of a commissioner appointed by the court for that purpose. Opposing counsel should also have notice and an opportunity to be present and the application to take it must make it appear to the trial court that it is material and will enlighten the court on the issues involved. Otherwise it should not be admitted."
It is true that in the subsequent appeal in the same case the Court held that there might be circumstances which would dispense with notice and the ability to be present. Of course, decisions of other jurisdictions are not controlling on this Court, but are merely persuasive, and may be accepted or rejected as authority by this Court. Such opinions have weight, being rendered by learned judges who are supposed to be impartial and fair. I think the rule announced in this Florida case, above quoted, presents a safeguard which should be required as a condition for the admission of motion pictures in evidence. Motion pictures, so used, may be likened to argument. The witness who took the picture must testify to the conditions reflected by the picture; and if the other party is not present when the picture is taken, with opportunity to challenge the correctness of the picture so made, its introduction may result in grossly unfair advantage to the party producing the picture. The right to be present when such a picture is made is almost as vital to justice as is the right to cross-examine.
In the case here involved, at the time the picture was made the plaintiff was engaged in some kind of work on a Works Progress Administration project. The motion picture, without notice to be present and opportunity to disprove its correctness, might produce the most serious miscarriage of justice. In such cases as this, the temptation might be very great to produce an inaccurate and misleading picture; and there would be no remedy for the party whose picture was taken if the production was inaccurate. He would be unable to produce witnesses to disprove the evidence as given by the moving picture, unless he has notice and opportunity to do so.
It is the purpose of the law that every person shall have equal rights in a lawsuit; and the rules of evidence are, or should be, such as to insure equal rights before the courts to all litigants. The ordinary person is not able to own or operate such a picture.
An ordinary photograph, stationary, may be re-photographed, enabling the opposite party to depict the object as it existed at the time. But it would be impossible to meet this motion picture evidence, taken without notice, where the correct aspect of the scene could not be proved, should the picture, in fact, be inaccurate or false.
The discretion of the court below in this matter should not be controlled by the Court here. If the picture is permissible at all, it should be by means of application to the trial judge, with the right to opposing parties to be heard against the application prior to their introduction in evidence. The record in this case shows that the trial judge was of the opinion that the use of the pictures in evidence would be unfair and misleading.
I think that on the record in this case the judgment should be affirmed.