Edwards v. Union Buffalo Mills Co.

• Decision Date: 28 July 1931
• Docket Number: 13210.
• Citation: 159 S.E. 818,162 S.C. 17
• Parties: EDWARDS v. UNION BUFFALO MILLS CO. et al.
• Court: South Carolina Supreme Court

159 S.E. 818

162 S.C. 17

EDWARDS v. UNION BUFFALO MILLS CO. et al.

No. 13210.

Supreme Court of South Carolina

July 28, 1931

Appeal from Common Pleas Circuit Court of Union County; R. T Wilson, Special Judge.

Action by Katie Bell Edwards against the Union Buffalo Mills Company and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Hughes & Russell, of Union, and Elliott, McLain, Wardlaw & Elliott of Columbia, for appellants.

Barron Barron & Barron and John K. Hamblin, all of Union, for respondent.

BONHAM J.

Plaintiff alleges in her complaint that at the time therein named she was employed by the defendant Buffalo Mills Company in the weave room of its mill situate at Union, S.C. Her duties were to fill the batteries of certain looms in that weave room. While so engaged, she alleges that she was struck in the back by a shuttle "that flew from one of the looms near by." That she was struck in her back, and backbone, and other parts of her back, thigh, and legs; was immediately permanently injured, in her back, spinal cord, nerves, and ligaments, and suffered great pain and anguish of mind and body; is threatened with paralysis; is unable to work, and has no hope of full recovery. That her injuries were due to defendants' negligence, willfulness, and wantonness in the particulars set out in the complaint. Judgment is asked for in the sum of $100,000.

Defendants for answer, after admitting the formal allegations of the complaint, admit that plaintiff was slightly injured, but deny that the injury was serious, or that it was of a permanent nature. They also plead assumption of risk.

Defendants at the conclusion of the testimony moved for a directed verdict in their favor on the grounds that there was no proof of negligence; no proof of failure to furnish a safe place to work, and safe appliances with which to work, and that the proof showed that the alleged injury is such as would be assumed as an incident of the employment.

The motion was overruled. The jury found for plaintiff in the sum of $30,000.

Motion for new trial was made upon the grounds set out in the transcript of record, which are too long to reproduce here, but such of them will be considered as we deem pertinent and material.

Some of the exceptions challenge the correctness of the rulings of the presiding judge in refusing to continue the case on motion of the defendants on the ground of absent witnesses.

It is established law in this state that the matter of continuance rests in the sound discretion of the presiding judge, and his ruling will not be interfered with unless there is a clear showing of abuse of that discretion. In this instance the statements of the absent witnesses were admitted by opposing counsel and were used in evidence. There was abundant testimony by other witnesses to the matters and things about which the absent witnesses would have sworn if they had been present, so their testimony would have been merely cumulative. We cannot say there was an abuse of discretion in denying the motion for continuance.

Other exceptions allege error in refusing the motion of defendants for directed verdict. We think there was no error. There was evidence by the plaintiff and her witnesses sufficient to take the case to the jury on the issues of negligence in the matter of a safe place to work, and safe appliances with which to work.

One of the serious questions in the appeal arises in connection with those exceptions which are predicated upon the charge that plaintiff's counsel was permitted to read to the jury from a medical book after the court had ruled that it was inadmissible; and that counsel was allowed to use in argument to the jury the testimony he had read from the excluded book. Upon objection by defendant's counsel to this argument the court merely admonished the plaintiff's counsel to keep to the evidence. The jury were not instructed to disregard the argument based upon the excluded book. Nor did the court's admonition avail to cause counsel to refrain from this line of argument. So that the plaintiff had the benefit of the evidence of the excluded medical book as fully as if it had been admitted. Thus the question whether a medical book may be read to the court, or in examination of a witness, or directly to the jury in argument, is squarely presented.

The sharp issue in the case was whether plaintiff was really injured as claimed, or if she was the subject of hysteria, and the victim of her nerves and imagination. Two doctors had testified in behalf of plaintiff to the effect that her injuries were real and permanent. Other doctors testified in behalf of defendants to the effect that plaintiff was the victim of hysteria, that her condition was brought on by her own actions, and that they were not of a permanent nature. And around this divergent testimony the issue ranged.

It appears from the transcript that after the objection by defendant's counsel and after the court had said, "Better ask him the direct question," counsel continued to read from the medical book of Dr. Osler. Folios 556-564 of Transcript.

This occurred while plaintiff's counsel was making his argument to the jury:

Mr. Barron: "I had more than two doctors, I had Dr. Osler. That knocked them off their feet."

Mr. Hughes: "One minute, Your Honor, under the law of this State medical books are not evidence in this case, and counsel has no right to argue it to the jury, and we object to it."

The Court: "Yes, sir, better confine yourself to the evidence, Mr. Barron."

Mr. Barron: "I showed Dr. Switzer the book and he said it was authority."

Mr. Hughes: "One minute, Your Honor, that cannot be referred to as evidence in this case."

Mr. Barron: "If Your Honor please, he is taking up the time I have for argument."

Mr. Hughes: "You are responsible for it."

Mr. Barron: "I am arguing the facts in this case."

If it was error for counsel thus to refer to the excluded medical book, it was not cured by the mild admonition of the court which went unheeded by counsel.

May medical books be read to the witnesses, or to the court, or to the jury? To read such a book to the court or the jury is to make of the author of the book a witness for the party introducing it, which witness the other party has no opportunity to cross examine. In addition, it is hearsay testimony.

Section 744, Code Civil Procedure S.C. 1922, is as follows: " Medical or Scientific Books--In What Cases May Be Read. In all actions or proceedings, civil or criminal, in which the question of sanity or insanity, or the administration of poison or other article destructive to life, is involved, and in which expert testimony may now be introduced, the medical or scientific works, or such parts thereof as may be relevant to the issues involved, shall be competent and admissible to be read before the Court, or jury, in addition to such expert testimony."

The fact that the General Assembly found it necessary, by a special enactment, to authorize the reading of medical or scientific books, in cases involving insanity or the administration of poison or other deadly articles, is unanswerable proof of its intention that such books should not be read to the Court, or jury, in other classes of cases. The maxim, "Inclusio unius est exclusio alterius," is especially applicable here.

Such books may legitimately be used by counsel upon which to frame hypothetical questions, but may not be used as testimony.

We take the following from 22 C.J. pp. 210, 211: " Printed Hearsay: A hearsay statement does not become competent by reason of the fact that it is printed, even though it appears in the responsible form of a book, and even though such book is a treatise by an author of standard authority on a scientific subject, such as a medical treatise. " (Italics added.) The editor fortifies his statement with numerous authorities from many states. The United States Medical Dispensary has been excluded. Boehringer v. Richards Medicine Co., 9 Tex. Civ. App. 284, 29 S.W. 508. " Admission cannot be secured indirectly by asking a medical expert whether extracts read to him from such a treatise are accurate statements of the facts." Davis v. State, 38 Md. 15; Marshall v. Brown, 50 Mich. 148, 15 N.W. 55. "Nor is it an available expedient to attempt to corroborate a medical witness by showing that such a treatise sustains his position." Fox v. Peninsula White Lead, etc., Works, 84 Mich. 676, 48 N.W. 203; Huffman v. Click, 77 N.C. 55. Note to 22 C.J. 211.

In Wigmore on Evidence, vol. 3, p. 1690, discussing the exceptions to the hearsay rule, the author says this:

"This exception is usually spoken of as involving the use of 'scientific books' or 'books of science and art' or 'medical books'; but the term 'learned treatise,' seems more accurate in indicating the scope of the doctrine. As an exception to the hearsay rule it has obtained complete recognition in only one or two jurisdictions; but it deserves a fuller acceptance, and the precise bearings of the reasons for and against it deserve careful consideration.

" More than one reason has been advanced for prohibiting the use of learned treatises in evidence; but the only legitimate one, and the one pointed out and relied upon in judicial opinions, is that such offer of evidence purports to employ testimonially a statement made out of Court by a person not subject to cross examination: i. e.; purports to violate the fundamental doctrine of the "Hearsay Rule." D'

The learned author then proceeds to give his reasons for the opinion that this exception might be given wider acceptance. But he admits that it has not been so accepted. Indeed, he says it has been completely accepted in only one or two jurisdictions.

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