Brady v. Shirley

Decision Date04 May 1901
Citation85 N.W. 1002,14 S.D. 447
PartiesGEORGE W. BRADY, Plaintiff and appellant, v. SAMUEL SHIRLEY et al., Defendants and respondents.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Fall River County, SD

Hon. Levi McGee, Judge


Kellar & Kellar, Walter L. Anderson

Attorneys for appellant.

Wilson & Wilson

Attorneys for respondents.

Opinion filed May 4, 1901


This is an action in claim and delivery for the possession of a young horse. Verdict and judgment for the defendants, and the plaintiff appeals.

The horse was claimed by both the plaintiff and the defendants, and the case turns upon the question of the animal’s identity. Numerous errors are assigned, only two of which we shall discuss in this opinion, namely, that the court erred in admitting the works of certain veterinary surgeons to be read to the jury, and that the court erred in permitting the jury to examine the horse in question, and divers other horses not in controversy in. this action. On the trial the defendants were permitted, over the objection of plaintiff, to read the above named works to the jury as evidence. These works were written on the subject of domestic animals, including the horse. The evident object and purpose of the introduction of these works was to inform the jury on the question of the dentition of the horse, in order that the jury might determine whether or not the horse in question was of the age contended for by the defendants. It is contended on the part of the appellant that these books were inadmissible for three reasons:

1) They were all works of inductive science, and did not belong to the class of exact science, which works are sometimes admissible;

(2) they were not in any manner shown to be standard authorities, or even of good repute;

(3) they were introduced for the purpose of proving age by the animal’s teeth.

This was a subject for oral evidence on the part of witnesses, and a number of witnesses testified upon this subject on the part of the defendants. With the exception of a class of works, such as almanacs, astronomical calculations, tables of life expectations in matters of insurance and the like, published works are inadmissible as evidence before the jury. State v. Sexton, 10 S.D. 127, 72 N.W. 84 (1897); People v. Millard, 53 Mich. 75, 18 N.W. 562; People v. Hall, 48 Mich. 490, 12 N.W. 665; People v. Wheeler, 60 Cal. 581; Com. v. Wilson, 1 Gray 337; Huffman v. Click, 77 NC 55; Knoll v. State, 55 Wis. 249, 12 N.W. 369; Boyle v. State, 57 Wis. 472, 15 N.W. 827. See, also, State v. Morris, 47 Conn. 179; Schell v. Plumb, 55 N.Y. 598; Sauter v. Railroad Co., 66 N.Y. 50; 9 Am. & Eng. Enc. Law (2d Ed.) 886, and cases cited. Medical works, even if of respected authority, are not competent evidence if objected to by the opposite party. In Ashworth v. Kittridge, 12 Cush. 193, the supreme court of Massachusetts, speaking by Shaw, C. J., says:

“The court are of opinion that it was not competent for counsel for the plaintiff, against the objection of the other side, to read medical books to the jury. It was formerly practiced rather by general indulgence and tacit consent of parties than in pursuance of any rule of law; but it has been frequently decided that it is not admissible, and we now consider the law to this effect well settled, both upon principle and authority. Where books are thus offered, they are, in effect, used as evidence, and the substantial objection is that they are statements wanting the sanction of an oath; and the statement thus proposed is made by one not present, and not liable to cross-examination. If the same author were cross-examined and called to state the grounds of his opinion, he might himself alter or modify it, and it would be tested by a comparison with the opinions of others. Medical authors, like writers in other departments of science, have their various and conflicting theories, and often sustain and defend them with ingenuity. But, as the whole range of medical literature is not open to persons of common experience, a passage may be found in one book favorable to a particular opinion, when perhaps the same opinion may have been vigorously contested and perhaps triumphantly overthrown, by other medical authors, but authors whose works would not be likely to be known to counsel or client, or to court or jury. Besides, medical science has its own nomenclature, its technical terms and words of art, and also common words used in a peculiar manner, distinct from their received meaning, in the general use of the language. From these and other causes a person not versed in medical literature, though having a good knowledge of the general use of the English language, would be in danger, without an interpreter, of misapprehending the true meaning of the author; whereas a medical witness would not only give the fact of his opinion and the grounds upon which it is formed. with the sanction of his oath, but would also state and explain it in language intelligible to men of common experience. If it be said that no books should be read except works of good and established authority, the difficulty at once arises as to the question what constitutes ‘good authority'; more especially whether it is a question of competency to be...

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