Launey v. Traders & General Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: TATE
• Citation: Launey v. Traders & General Ins. Co., 169 So.2d 757 (La. App. 1964)
• Decision Date: 01 December 1964
• Docket Number: No. 1296,1296
• Parties: Freemont LAUNEY, Sr., Individually, etc., Plaintiff-Appellant, v. TRADERS AND GENERAL INSURANCE COMPANY, Defendant-Appellee.

Page 757

169 So.2d 757

Freemont LAUNEY, Sr., Individually, etc., Plaintiff-Appellant, v. TRADERS AND GENERAL INSURANCE COMPANY, Defendant-Appellee.

No. 1296.

Court of Appeal of Louisiana, Third Circuit.

Dec. 1, 1964.

Rehearing Denied Dec. 22, 1964.

Tate & Tate, by Paul C. Tate, Mamou, and Fusilier, Pucheu & Soileau, by L. O. Fusilier, Ville Platte, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by John G. Torian, II, Lafayette, for defendant-appellee.

Before TATE, SAVOY and CULPEPPER, JJ.

TATE, Judge.

Freemont Launey, Jr., a minor, was injured in a collision while riding as a passenger in an automobile owned and driven by Rene Guillory. Young Launey's father brings this suit against Guillory's liability insurer to recover for the minor's personal injuries and for other damages thereby sustained.

The trial court dismissed the suit upon a holding that Guillory was not negligent. The plaintiff appeals. The issues of the appeal are essentially factual.

Admissibility of photographs.

Preliminarily, both counsel have asked us to rule on the admissibility of certain photographs of young Launey soon after the accident, indicating the scarred and torn up condition of his face. Three of the pictures were identified by young Launey as being pictures of himself truly depicting his condition at the time taken, and two of them were identified by testimony of the attending physician to the same effect. Counsel for the defendant objects to the admission of these photographs on the ground that they were not first identified by the photographer by whom taken, in order to eliminate possibilities of technical retouching or distortion.

The general rule is that photographs are admissible only if verified or authenticated as accurate by extrinsic evidence and that the trial court has some discretion in determining the sufficiency of the preliminary proofs offered to identify or authenticate the photograph. 32 C.J.S. Evidence §§ 715, 716, pp. 1006, 1018; 20 Am.Jur. 'Evidence', Section 730 (p. 609.) As these encyclopedia references also show, this authenticating evidence must be to the effect that the photograph is a substantially true and faithful representation of the place, person, or subject which it purports to portray. See Fuqua v. Martin, La.App. 2 Cir., 40 So.2d 404; cf., Greeves v. S. H. Kress & Co., La.App.Orl., 198 So. 171. If the photograph is not substantially correct but is nevertheless admissible because sufficiently correct to be helpful, its verification may consist of explaining the inaccuracies. 32 C.J.S. Evidence § 715 at pp. 1012--1013; 20 Am.Jur. 'Evidence', Sections 730--734 at pp. 609--613; Annotation, Photographs--Authentication, 9 A.L.R.2d 899. See also Annotation, Evidence--Photographs and Photostats, 72 A.L.R.2d 308.

In the authentication, 'The photograph may be verified by oath of the photographer who took it; and, indeed, it has been said that this is the better practice. However, it is not necessary to produce the photographer; sufficient verification may be furnished by the testimony of any competent witness who has sufficient knowledge to testify that the photograph fairly represents what it purports to represent.' 32 C.J.S. Evidence § 715 at p. 1014. Or, as stated at 20 Am.Jur. 'Evidence', Section 730 at p. 610, 'The authenticity of a photograph may be established by any witness who is familiar with the scene, object, or person portrayed or is competent to speak from person observation. Thus, proof of the accuracy of a photograph of a person may be made by the testimony of one who was familiar with the appearance of the person at the time the photograph was taken.' Cf., State v. Goins, 232 La. 238, 94 So.2d 244, syllabus 5. See also Annotation, 9 A.L.R .2d 899 (cited above) at Section 12, p. 923.

Likewise, photographs may be admitted to prove the physical condition of a person at a particular time, where such evidence is relevant. 32 C.J.S. Evidence § 711, p. 993; 20 Am.Jur. 'Evidence', Section 732 (p. 611).

The present photographs, being identified as accurate representations of young Launey's appearance at the time taken, are therefore admissible for the purpose of demonstrating the nature of his initial facial injuries. If the defendant felt that there were distortions despite the authenticating evidence, it was open to the defendant to produce testimony to such effect from other witnesses or from the photographer himself, presumably being entitled to call the latter under cross-examination if the pictures had been made at the order of the plaintiff or his attorney, LSA-C.C.P. Art. 1634.

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