Davis v. Arkansas Best Freight System, Inc.

• Decision Date: 07 June 1965
• Docket Number: No. 5-3495,5-3495
• Citation: 239 Ark. 632,393 S.W.2d 237,17 A.L.R.3d 986
• Parties: , 17 A.L.R.3d 986 Sidney DAVIS, Appellant, v. ARKANSAS BEST FREIGHT SYSTEM, INC., Appellee.
• Court: Arkansas Supreme Court

Page 237

393 S.W.2d 237

239 Ark. 632, 17 A.L.R.3d 986

Sidney DAVIS, Appellant, v. ARKANSAS BEST FREIGHT SYSTEM, INC., Appellee.

No. 5-3495.

Supreme Court of Arkansas.

June 7, 1965.

Rehearing Denied Sept. 20, 1965.

Tom Gentry, Little Rock, for appellant.

Thomas Harper, Ft. Smith, for appellee.

McFADDIN, Justice.

This is a workmen's compensation case. Sidney Davis (claimant and appellant), an employee of Arkansas Best Freight System (appellee) claimed that on December 30, 1960 he suffered a heart attack which arose out of and in the course of his employment. He testified that on December 30, 1960 he drove a truck and trailer loaded with pipe from Little Rock to Crossett; that he experienced considerable difficulty in Crossett in detaching the trailer from the truck and thereby overexerted himself; and that I. Allowing A Witness To Read From A Book On Direct Examination. At the hearing before the Referee the employer called Dr. Drew Agar as its witness and he testified that in his opinion there was no causal connection between claimant's work and his heart attack. On direct examination the Referee allowed Dr. Agar to support his opinion evidence by reading typewritten excerpts from several medical textbooks and writers. ¹ The claimant duly preserved his objections and so we now have before us the question whether a doctor--on direct examination--may support his own opinion evidence by reading excerpts which he has copied from medical textbooks and from the writings of other doctors.

he suffered a heart attack shortly thereafter. The employer resisted the claim, insisting that there was no causal connection between the work appellant did and his heart ailment. The Referee disallowed the claim; the Full Commission disallowed the claim; the Circuit Court affirmed the Commission; and the case is here on appeal. There is no necessity to state the facts in detail because this appeal does not challenge the finding of the Commission on the sufficiency of the evidence. Rather, the challenge here is that the Commission committed errors of law. We will discuss the more important ones that appellant urges.

It is true that the Workmen's Compensation Commission is an administrative agency and that the technical rules of evidence do not apply to its procedure (Ark.Stat.Ann. § 81-1327 [Repl.1960]), ² nevertheless it has been repeatedly held that a litigant has the right to cross-examine a witness. In 58 Am.Jur. 339 the text summarizes the holdings:

'The cross-examination of witnesses is one of the safeguards to accuracy and truthfulness. The test of cross-examination is the highest and most indispensable known to the law for discovery of truth. When a witness has been examined in chief, the other party has the right to cross-examine for the purpose of ascertaining and exhibiting the situation of the witness with respect to the parties and to the subject of the litigation, his interest, his motive, his inclinations, his prejudices, his means of obtaining a correct and certain knowledge of the facts to which he has borne testimony, the manner in which he has used those means, and his powers of discernment, memory, and description. The purpose of the cross-examination is to test the truthfulness Certainly, here, the claimant had no opportunity to cross-examine the writers of the textbooks and medical treatises which Dr. Agar used to support and bolster his own testimony. We have held that in a court trial a doctor cannot support his own testimony by reading from a medical textbook. ³ In Moore v. State, 184 Ark. 682, 43 S.W.2d 228, we said:

of the witness, to sift, modify, or explain what has been said, to develop new or old facts in a view favorable to the cross-examiner, or to discredit the witness, and, if he is the plaintiff, to test his good faith--the righteousness of his case. * * * In a judicial investigation the right of cross-examination is absolute, and not a mere privilege of the one against [239 Ark. 635] whom a witness may be called. In a civil action a party has the right to cross-examine witnesses against him whether the evidence is given ore tenus or by deposition.'

'The extracts from the medical and law books were not competent, and the court did not err in refusing to permit appellant to introduce them.

"It is very generally recognized that extracts from medical books are not admissible in evidence, and for the very sufficient reason that the author does not write under the sanctity of an oath and has not been subjected to cross-examination, and the decisions of this state are to the effect that statements from these books may not be presented as such in the arguments of counsel or introduced by means of questions put on cross-examination as by reading an opposing opinion from a textbook and asking the witness if it is or is not true; for this would have the effect of putting the statement in evidence, and thus accomplish by indirection what is forbidden.' State v. Summers, 173 N.C. 775, 92 S.E. 328, 330.

'The correct rule is that an attorney may use a medical book to aid him in framing questions to be asked of a physician testifying as an expert, but it is not permissible to read from such books to the jury. * * *

'The witness Dr. Foltz was put on the stand by the appellant and was on direct examination. On cross-examination of an expert witness, where he bases his opinion on a text-book, he may be cross-examined, and, for the purpose of impeaching him, extracts from the authorities may be read; but it is never proper to introduce the books, or extracts from them, except on cross-examination.'

The Commission may quote from medical books to explain the findings; but a doctor called to express his opinion must express II. Refusal To Allow A Letter For Impeachment. After Dr. Agar testified on direct examination the claimant's attorney sought to impeach him by a letter which Dr. Agar had written involving another patient. Dr. Agar had been testifying that work did not cause a heart attack and he had written a letter which indicated the contrary. The claimant's attorney offered the entire letter, but the only part allowed was the last sentence. In order to get the setting, we quote the last paragraph of the letter and emphasize the only sentence in the letter that was allowed for cross-examination and impeachment:

his own opinion so that he may be cross-examined. He cannot on direct examination bolster his own opinion by quoting from some other doctor who is not subject to cross-examination.

'It would appear from the history that Mr. Holmes has suffered two coronary occlusions, the first in 1957 doing heavy work and the second in 1960 again doing heavy work. It also appears from the history that during the time Mr. Holmes was engaged in light work as a result of his first heart attack he had practically no symptoms of cardiac disease. However when he again engaged in heavy work involving the lifting of 75 to 100 pound weights he again had chest pains and had another coronary occlusion. It would appear therefore that there is a causal relationship between his work that he was doing on June 24th, 1960 and his subsequent heart attack. It is my professional opinion that there is a definite relationship in this case.'

In order to get the full effect of the attempted impeachment, certainly the claimant should have been allowed to introduce the letter and not merely one sentence from it.

III. Refusal To Allow Claimant To Offer Rebuttal Evidence. On December 6, 1962 the Commission closed the case and heard arguments. While the Commission had the case under consideration it caused the claimant to be examined by Dr. Kahn, who wrote the Commission a six page typewritten letter on March 30, 1963 telling in detail of the examination, the answers the claimant had made, and the doctor's opinion as to the claim. Then on May 2, 1963 the Commission reopened the case for a further hearing, at which time Dr. Kahn offered his letter and testified, and claimant's attorney...