Phillips v. Newport

• Decision Date: 24 February 1945
• Citation: 187 S.W.2d 965,28 Tenn.App. 187
• Parties: PHILLIPS et al. v. NEWPORT et ux.
• Court: Tennessee Court of Appeals

187 S.W.2d 965

28 Tenn.App. 187

PHILLIPS et al. v. NEWPORT et ux.

Court of Appeals of Tennessee, Middle Section.

February 24, 1945

Certiorari Denied by Supreme CourtMay 15, 1945.

Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.

Action by Elam J. Newport and wife against H. Dayton Phillips and another, doing business as Phillips-Robinson & Company, for allegedly performing an unauthorized autopsy on the body of plaintiffs' son, who was a little less than two years of age.Judgment for plaintiffs, and defendants appeal in error.

Affirmed.

Homer Weimar, Joe Brown Cummings, and Albert Williams, all of Nashville, for plaintiffs in error.

Willard Hagan, of Lebanon, and David M. Keeble and Walker & Hooker all of Nashville, for defendants in error.

HICKERSON, Judge.

Elam J Newport and his wife, Marian Newport, brought this suit against H. Dayton Phillips and Garner Robinson, doing business as Phillips-Robinson & Company, to recover compensatory and punitive damages for an alleged unauthorized autopsy upon the body of plaintiffs' infant son.Defendants pleaded not guilty.Judgment for plaintiffs was entered upon a verdict of the jury in the sum of $2,000 for compensatory damages and $2,000 for punitive damages, making a total judgment of $4,000.Defendants appealed in error to this court.

The assignments of error raised five questions which we state affirmatively:

1.The court erred in permitting Dr. Lillard Sloan to testify, as a fact, that an autopsy had been performed on the body of the infant child.

2.It was error to permit expert witnesses to testify that, in their opinion, an autopsy was performed.

3.The motion for directed verdict should have been sustained because there was no material evidence to support the verdict.

4.The trial court failed to deliver a written charge to the jury upon the request of defendants.

5.The verdict was so excessive as to show passion, prejudice and caprice on the part of the jury.

These questions will be determined in order.

In this opinion we shall refer to the various incisions, or cuts, which appeared on the body of this infant child, as an operation, or operations.There is only one ultimate issue of fact in the case: Were the operations on the body of this child made for the purpose of a post-mortem examination, or for the purpose of embalming the body?It is not a malpractice suit.If the operations were done for the purpose of embalming the body, plaintiffs cannot recover, even if such operations were unnecessary and were negligently done.So, in the last analysis, the question is this: Was an autopsy performed upon the body of this child?

1.Defendants complain that the trial judge permitted Dr. Lillard Solan to testify, as a fact, and not, as an opinion, that an autopsy was performed.The following testimony is set out, in the assignment which raises this question, as the objectionable testimony:

'Q.State whether or not, from what you saw, rather, from what you have testified here in your deposition, that at the time you and Dr. McFarland made the examination of this child's dead body, that an autopsy had been performed.A.Shall I answer it?

'Q.Yes, sir.A.Yes, sir.'

We do not construe the entire testimony of Dr. Sloan to mean that he testified, as a fact, and not, as an opinion, that an autopsy was performed.Immediately following the foregoing testimony, about which defendants complain, this question and answer appear:

'Q.So that there can be no doubt about it--A.That was our opinion, that a post-mortem had been held.'

This testimony, when considered as a whole, clearly shows, because it specifically states, that it 'was our opinion, that a post-mortem had been held.'

2.Defendants also assign as error that expert witnesses were permitted to testify that, in their opinion, an autopsy had been performed.The basis of this assignment is stated in defendants' brief to be that: 'Such testimony was incompetent and prejudicial to the rights of defendants because thereby, and without the necessity for a reliance upon the opinion of others, the jury was allowed to receive as evidence the opinion of witnesses upon the single and ultimate fact which the jury was called upon to determine.'

There are decisions of our Supreme Court which lend support to this contention of defendants.Cumberland Telephone and Telegraph Co. v. Peacher Mill Company,129 Tenn. 374, 164 S.W. 1145, L.R.A.1915A, 1045;Bruce v. Beall,99 Tenn. 303, 41 S.W. 445.

These decisions, however, have been qualified and the broad statement of the rule therein has been limited in other decisions of that court.National Life & Accident Insurance Company v. Follett,168 Tenn. 647, 80 S.W.2d 92;Moon v. State,146 Tenn. 319, 242 S.W. 39;McCravy v. State,133 Tenn. 358, 181 S.W. 165;Mayor, etc., Knoxville v. Klasing,111 Tenn. 134, 76 S.W. 814;Knights of Pythias v. Steele,108 Tenn. 624, 69 S.W. 336;see also32 C.J.S., Evidence, §§ 472-473.

In National Life & Accident Insurance Company v. Follett,supra[168 Tenn. 647, 80 S.W.2d 95], the court said that 'the true rule' on this question was stated in McCravy v. State to be that,133 Tenn. 358, 368, 181 S.W. 168: 'Testimony is permissible allowing an expert to state a conclusion or give an opinion on a subject which is peculiarly a matter of superior knowledge on his part, for the reason that the lay mind is not so competent to form an opinion or reach a conclusion.Such expert opinion or conclusion, however, may be permitted only in matters peculiarly within the knowledge of an expert.'

In the Follett case, the court reviewed various decisions in this case state, and in other jurisdictions, and made these statements in regard to the admission of the opinion of experts upon the issue to be determined by the jury:

'In so far as the questions propounded to the doctors called for an expression of opinion upon the very issue to be determined by the jury, we think that the questions were clearly unobjectionable.This is true because the issue to be determined by the jury, the cause of death, could not be intelligently determined, either by jury or judge, without the aid of medical advice.

* * *

* * *

'If special or expert knowledge is necessary for the proper determination of the cause of a condition, we see no reason why such evidence should not be admitted just as in a case where such evidence is necessary to determine the existence of the condition itself.

'Decisions of this court do not support the idea that expert evidence as to causation is inadmissible.

* * *

* * *

'If it is necessary for a jury to have the advice and opinion of an expert witness in order to draw a proper conclusion from certain facts, a definite and positive expression from such a witness would be much more helpful to the jury than a qualified expression.The opinion is not to be received at all upon an ultimate issue of fact, if the jury is qualified to pass upon such an issue.However the opinion be phrased or formulated, it remains an opinion, which the jury is at liberty to reject.To restrict the expert's expression, however, to the subjunctive mood in addition to detracting from the force of the opinion tends to confuse the jury in weighing the testimony of the witness.Such mode of expression indicates that the witness lacks conviction when, as a matter of fact, he may be entirely convinced.'

There seems to be no doubt about the law on this question as declared by this latest decision of our Supreme Court: An expert may express an opinion upon the very issue to be determined by the jury if that issue could not be intelligently determined by the jury without the aid of expert advice.

The application of this rule must be determined by the facts of each particular case.It is often difficult to say whether expert advice is necessary to help the jury determine the issue.In such close cases, we think some discretion should be given the trial judge.Here, the trial judge permitted the expert witnesses to express opinions upon the issue to be determined by the jury, to-wit: Was an autopsy performed?We find no error in that ruling.Few subjects are more complicated or technical than post-mortem examinations and embalming.The layman knows nothing about them.Highly technical operations and intricate processes are involved in both.Doctors and embalmers who have given many years of study to these subjects could enlighten a layman in regard thereto.They know what is necessary to be done, how it should be done, how it was done, and can certainly be in much better position to express an opinion as to why these operations on the body of this child were performed than the laymen in the jury box.

3.Did the trial court err in refusing to direct a verdict for defendants?

Plaintiffs' case is based on circumstantial evidence, because no eyewitness was introduced who testified that an autopsy was performed.The defense is based on circumstantial evidence and direct evidence, because defendant, H. Dayton Phillips, testified that he performed all the operations on the body; and that they were performed for the purpose of embalming the body, and not for the purpose of a post-mortem examination.

Material evidence was introduced to support the following facts: Elam J. Newport, Jr., who was the infant son of plaintiffs, died as the result of taking forty-five aspirin tablets of five grains each.He was one year, ten months and ten days old when he died.The body was removed from Madison Sanitarium, where he died, to the funeral home of defendants.Plaintiffs instructed defendants to embalm the body and prepare it for burial.No permission was given for a post-mortem examination.

The body was received by defendant...