Dorr, Gray & Johnston v. Headstream

• Decision Date: 30 May 1927
• Docket Number: 35
• Citation: 295 S.W. 16,173 Ark. 1104
• Parties: DORR, GRAY & JOHNSTON v. HEADSTREAM
• Court: Arkansas Supreme Court

295 S.W. 16

173 Ark. 1104

DORR, GRAY & JOHNSTON v. HEADSTREAM

No. 35

Supreme Court of Arkansas

May 30, 1927

Appeal from Independence Circuit Court; Dene H. Coleman, Judge affirmed.

Judgment affirmed.

John B McCaleb and J. J. McCaleb, for appellant.

S. M Bone, Watkins & Pate and Emerson, Donham & Fulk, for appellee.

OPINION

HUMPHREYS, J.

This suit was brought by appellee against appellants, partners engaged in the practice of medicine and surgery at Batesville, Arkansas, to recover damages in the sum of $ 50,000 for negligently, carelessly and unskillfully burning his left arm with an X-ray while treating a small place thereon diagnosed by them as eczema. It was alleged in the complaint that appellants applied the X-ray to the affected part, placing the machine within less than two inches thereof, and negligently, carelessly, and unskillfully permitting the application of the X-rays to continue for thirty minutes, while out of the room, as a result of which his arm was seriously and permanently injured. There were other allegations of negligence in the complaint, of which no mention will be made, as appellee introduced testimony in support only of his allegation of negligence of appellants in applying the treatment.

Appellants filed an answer, denying all of the material allegations of the complaint, and interposing the further defense that the burn received from the X-ray treatment was slight, from which appellee completely recovered under their treatment, and that the burn did not result from negligence of lack of care on their part, but was caused solely from the inherent uncontrollable nature of the rays and the fact that appellee was constitutionally hypersensitive to the X-ray, which condition was not and could not have been known to them.

The trial of the cause resulted in a judgment against appellants for $ 5,000 in favor of appellee, from which is this appeal.

The record is so voluminous that it is entirely impractical to incorporate the substance of the testimony of each witness in this opinion. Lay and expert witnesses were introduced by both sides and examined at length. Suffice it to say that the testimony introduced by appellee tended to support the allegations of his complaint with reference to the negligent application of the X-ray to the affected part, which caused great pain and suffering for a long time, necessitating two major operations by a noted physician in Chicago, an outlay of large sums of money, financial losses, deficiency in arm strength and power; whereas the testimony introduced by appellants tended to show skill and proper application of the X-ray treatment to the affected part, resulting in a slight burn, which they could not prevent on account of the uncontrollable character of rays generated by the X-ray machine, and the constitutional hypersensitiveness of appellee to the X-ray.

The jury found against appellants on the disputed questions of fact, and, as there is sufficient testimony to support the verdict, this court cannot invade the exclusive province of the jury and determine where the weight of the evidence lies. We can only review the record where any reversible errors were committed in the trial of the cause.

Appellants' first contention for a reversal of the judgment is that the trial court erred in allowing Dr. L. M. Hill, a chiropractor, to testify as an expert witness in the case. Dr. Hill did not qualify as a physician and surgeon, but testified that he was a graduate of the X-Ray School at Davenport, Iowa, and that he had taken courses in the E. O. Thompson School at Baltimore, Maryland; that he had made between seventeen and twenty thousand exposures with X-ray machines for diagnostic purposes, but not as a therapeutic remedy; also that he was a graduate of Carver School of Chiropractic, of Oklahoma City, Oklahoma. X-ray specialists who apply the X-ray to the human body as a therapeutic remedy, as well as for purposes of diagnosis, are not always graduate physicians. Indeed, according to the record, the operator of the X-ray machine at Mayo's is not a physician. The X-ray is largely a scientific field unto itself, and any one who, by study, observation and experience in that particular branch of science, possesses knowledge and skill therein beyond that of persons of common knowledge, is competent to testify as an expert witness. Newport Manufacturing Co. v. Alton, 130 Ark. 542, 198 S.W. 120.

This court is committed to the doctrine that it is not necessary for one to be a physician in order to be an X-ray specialist and entitle him to testify as an expert. Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397, 13 A. L. R. 1403. In speaking of the application of X-ray and the competency of the testimony of one versed and skilled in the use thereof, the Supreme Court of Minnesota said:

"The so-called X-rays, discovered by Roentgen have been recognized and known to scientists, both in and out of the medical profession, for some eight years. During the time the apparatus for the generation of the X-rays, together with the fluoroscope, has been used very generally by electricians, professors of physics, skiagraphers, physicians and others, for experimental and demonstrative purposes. It is a scientific and mechanical appliance, the

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