Godvig v. Lopez

• Decision Date: 15 February 1949
• Citation: 185 Or. 301,202 P.2d 935
• Parties: GODVIG <I>v.</I> LOPEZ
• Court: Oregon Supreme Court

185 Or. 301

202 P.2d 935

GODVIGv.

LOPEZ

Supreme Court of Oregon.

Argued January 12, 1949.

Affirmed February 15, 1949.

Evidence — Photograph — Accident victim — Nature and results of injury

1. Photograph of automobile accident victim before she underwent plastic surgery was relevant to show nature and results of injury during period between accident and operation, and as showing condition which required operative treatment.

Evidence — Photographs — Physical condition — Circumstances or cause of death

2. Although the court has some discretion to prevent abuse, in general, photographs showing physical condition of injured persons, or even the appearance of deceased persons, are admissible if they tend to show circumstances or cause of death.

Evidence — Photographs — Necessary or instructive — Material fact or condition

3. Photographs are not admissible unless they are necessary or instructive to establish some material fact or condition.

Evidence — Photographs — Best evidence rule

4. Best evidence rules does not exclude photographic evidence merely because some witness has testified concerning conditions portrayed in picture.

Evidence — Trial — Photograph — Gruesome — Prejudicial — Incompetent

5. Photograph of automobile accident victim before she underwent plastic surgery was admissible over objection that it was gruesome, prejudicial, and incompetent.

Trial — Abstract instruction

6. Prohibited "abstract instruction" is one which either broadens issues beyond scope of pleadings or beyond scope of evidence, and thus directly or impliedly submits to jury questions not properly before it.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Abstract Instruction".

Appeal and error — Abstract instruction — Jury — Misled

7. Giving of abstract instruction is not reversible error unless jury may have been, and probably were, misled, to injury of complaining party.

Appeal and error — Trial — Abstract instruction — Personal injury — Guest passenger

8. In personal injury action by guest passenger in automobile driven by husband, against motorist who approached point of

accident from opposite direction, instruction reminding jury that there was no charge of negligence against husband and that if he were negligent it could not be imputed to passenger was not objectionable as an abstract instruction, and, even if it were abstract, instruction was not prejudicial.

New trial — Statutory instruction — No basis — Jury misled

9. Giving of statutory instruction without basis therefor in the evidence does not require new trial unless jury were obviously misled. O.C.L.A. § 2-1001.

Trial — Statutory instruction — Proper occasion

10. Every trial may be a proper occasion for the giving of certain statutory instructions, but in general it is duty of trial judge to determine from consideration of pleadings and evidence in particular case whether it is proper occasion to give a particular statutory instruction. O.C.L.A. § 2-1001.

Trial — Statutory instruction — Issues — Pleading — Evidence

11. The giving or refusal to give a statutory instruction may or may not constitute error, depending in each case upon the nature of the issues presented by pleadings and evidence.

Appeal and error — Statutory instruction — Absence of request

12. Failure to give a statutory instruction in absence of request is not appealable error. O.C.L.A. § 2-1001.

Appeal and error — Statutory instructions — Specific request — Timely exception

13. Assignment of error for failure to give statutory instructions should be based upon specific request refused or upon timely exception which would enable trial court to supply omitted instruction if occasion were a proper one. O.C.L.A. § 2-1001.

Appeal and error — Statutory instructions — No request — No except on — Motion for new trial

14. Where no request for statutory instructions was made nor any exception taken to failure to give them and failure was first called to attention of trial court upon motion for new trial, assignment of error based on failure to give statutory instructions was without merit.

                  See 32 C.J.S., Evidence, § 710
                

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

Orval N. Thompson, of Albany, argued the cause for appellant. On the brief were Weatherford & Thompson, and Willis, Kyle & Emmons, all of Albany.

K.C. Tanner, of Portland, argued the cause for respondent. On the brief were Tanner & Clark, of Portland.

Before LUSK, Chief Justice, and BRAND, BELT, BAILEY and HAY, Justices.

Action for damages arising out of a highway collision between cars approaching from opposite directions. From a verdict and judgment for plaintiff, defendant appeals.

AFFIRMED.

BRAND, J.

1. As a result of the collision between the car in which plaintiff was riding as a guest, and the car operated by the defendant, the plaintiff suffered a wound about two inches in length which extended across above the nose from one eyebrow to the other. The wound was sutured within a few hours after the accident by Dr. Edwards at Waldport. The plaintiff was injured on 14 July 1946, and at some time in the latter part of August of that year, Dr. Bettman, a specialist in plastic surgery, performed an operation for the removal of scar tissue. He testified that he removed all of the scar, or as much as he possibly could, and resutured the wound. A photograph of the plaintiff's face was taken by Dr. Bettman prior to the plastic surgery. The photograph discloses the scarred appearance of the plaintiff's forehead during the period of four to six weeks prior to the operation by Dr. Bettman. The evidence shows that the plaintiff's appearance materially improved after the last operation. The jury were enabled to see the results of the plastic surgery when the plaintiff appeared as a witness. However, they were also entitled to know the nature and results of her injury during the temporary period preceding the operation as well as the results after the scar tissue had been largely removed. The photograph is also relevant as showing a condition which required operative treatment. When the photograph was offered in evidence the defendant objected on the ground that it was gruesome, prejudicial and incompetent. The admission of the photograph in evidence is assigned as error. In support of the assignment the defendant cites State v. Miller, 43 Or. 325, 74 P. 658. Defendant asserts that:

"* * * The Miller case holds that photographs in any event are not admissible if they are gruesome and if they arouse sympathy or indignation and that they are manifestly harmful instrumentalities for use as evidence against the defendants in such cases and under such situations."

We do not so read the opinion. Concerning the admissibility of photographs the court said:

"* * * But unless they are necessary in some matter of substance, or instructive to establish material facts or conditions, they are not admissible, especially when they are of such a character as to arouse sympathy or indignation, or to divert the minds of the jury to improper or irrelevant considerations * * *"

The court added that the photograph offered in that case was not a faithful reproduction, which of itself would be sufficient reason for its exclusion. Concerning the Miller case Wigmore comments as follows:

"* * * (photographs of gunshot wounds on the deceased, excluded as `gruesome' and unnecessary; unsound on the facts)." Wigmore on Evidence, Vol. IV, third ed., section 1157, p. 257. (Note).

2-4. The more modern decisions, while recognizing that the court has some discretion to prevent abuse, nevertheless uphold the admissibility of photographs showing the physical condition of injured persons, or even the appearance of deceased persons, if they tend to show the circumstances or cause of death. State v. Weston, 155 Or. 556, 64 P. (2d) 536; 108 A.L.R. 1402; State v. Weitzel, 157 Or. 334, 69 P. (2d) 958; State v. Dennis, 177 Or. 73, 159 P. (2d) 838, 161 P. (2d) 670. Photographs are not admissible in evidence unless they are necessary or instructive to establish some material fact or condition. But there is no best evidence rule which excludes photographic evidence merely because some witness has testified concerning the conditions portrayed in the picture. In State v. Cunningham, 173 Or. 25, 144 P. (2d) 303, the court said that if the exhibit "could be deemed gruesome, that circumstance in itself would not have excluded it from reception as evidence". The court cited with approval State v. Nelson, 162 Or. 430, 92 P. (2d) 182, and the Weitzel and Weston cases, supra. The court said, "Those authorities we deem controlling rather than State v. Miller * * * upon which the defendant relies." In State v. Nelson, supra, the court said that State v. Miller "has been distinguished and is not in harmony with State v. Weston, supra." In State v. Nelson, supra, it was held that a photograph of a dead body was properly admitted to explain and demonstrate the testimony of a medical witness. In that case the court said, "Although a photograph might be prejudicial because of its so-called gruesome character, it is nevertheless admissible in evidence if material to some issue in the case * * *". The language used was perhaps unfortunate. We think the intention was to say that it would not be prejudicial error to admit a photograph of a gruesome character if material to some issue in the case. We had supposed that the controversy concerning so-called gruesome evidence had been put to rest by the opinion of ROSSMAN, C.J., in State v. Henderson, 182 Or. 147, 184 P. (2d) 392.

5. We cannot uphold the jury system as the exemplification of enlightened justice and at the same time hold that juries are not to be trusted to see pertinent evidence of the physical facts which are in issue. Because of the earnest presentation of the so-called gruesome evidence rule we have once more reviewed the authorities, but we...