Price v. Jacobs
Decision Date | 22 August 1980 |
Citation | 387 So.2d 172 |
Parties | Arnold PRICE et al., v. Jacob JACOBS. 78-791. |
Court | Alabama Supreme Court |
John Earle Chason of Chason & Chason, Bay Minette, for appellants.
James R. Owen of Owen & Ball, Bay Minette, Geary A. Gaston and Patricia K. Olney for Reams, Tappan, Wood, Vollmer, Philips & Killion, Mobile, for appellee.
This appeal by Arnold Price and wife Mary Lucille Price and State Farm Mutual Automobile Insurance Company is from a judgment entered on a jury verdict in favor of Jacob Jacobs for $15,000 damages sustained in an automobile accident.
This negligence action was initially filed by Jacob Jacobs against Arnold Price for damages sustained in an automobile accident at the intersection of Highway 90 and the Malbis Parkway in Baldwin County. Price and his wife, Mary Lucille Price, counterclaimed for their damages. The Prices' insurer, State Farm Mutual Automobile Insurance Company, which had paid the Prices $5,114.08 and had a subrogation interest in their counterclaim to that extent, joined their action as a party plaintiff.
The case was tried before a jury, which returned a verdict in favor of Jacobs for $15,000, and judgment was entered thereon. A motion for new trial filed by the Prices and State Farm was denied and this appeal ensued.
Appellants raise two issues: Whether the trial court erred by allowing Jacobs to place in evidence a notation in the records of Tim Smith, M. D., Arnold Price's attending physician, together with testimony of the doctor explaining the terminology used in the notation; and whether the trial court erred in its oral charge to the jury.
The facts pertinent to the issues for review on this appeal have nothing to do with the details of how the automobile collision occurred or those concerning the injuries and damages suffered by Arnold Price or Jacob Jacobs.
Regarding the issue of alleged error in connection with the testimony and records of Price's attending physician, Dr. Smith, the following appears in the record:
Also admitted into evidence over objection were medical records of Dr. Smith concerning Mr. Price containing the following notation:
"5-23-77 B/P 130/86 Still complaining of his low back hurting him a good bit, he exaggerates the pain and motions when he bends and moves, I do not know what we will do with this guy, he is probably going to have to have a greenback poultice put on him."
Appellants contend the foregoing evidence invaded the province of the jury because it called for a speculative conclusion on the part of Dr. Smith about matters outside his training and experience.
We are not convinced it was error to admit this testimony. Dr. Smith treated Price following the accident; he was qualified as a medical expert, and testified about medical notes made at the time of, and based upon, his treatment of Price.
The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court. Expert opinion evidence should not be admitted unless it is clear that the jurors themselves are not capable from want of experience or knowledge of the subject matter to draw the correct conclusion from facts proved. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). However, expert opinion evidence may be helpful regarding the validity of a patient's complaints of pain because jurors' lack of experience or knowledge of the subject might prevent their drawing correct conclusions from facts proved. Yates v. Christian Benevolent Funeral Homes, Inc., 356 So.2d 35 (Ala.1978).
We will not disturb the trial court's ruling on the admissibility of expert testimony because, from the record, it is apparent there was no clear abuse of discretion in that regard. Southern Railway Co. v. Roberts, 380 So.2d 774 (Ala.1980).
Rule ARCP, 44(h), provides:
" * * * Any writing or record, whether in the form of an entry in a book or otherwise, made as memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if it was made in the regular course of any business, profession, occupation, or calling of any kind, and it was the regular course of the business, profession, occupation or calling to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. * * * "
The Code is to the same effect. § 12-21-43, Code 1975. Evidence of a doctor's diagnosis contained in such records has been recognized by this court as admissible as an "act, transaction, occurrence or event." Bailey v. Tennessee Coal, Iron and Railroad, Co., 261 Ala. 526, 75 So.2d 117 (1954).
Clearly the doctor was otherwise qualified to give expert opinion testimony regarding whether or not his patient was malingering or feigning injury. We cannot say that admitting the medical records and portions of the deposition explaining the notation in the records was an abuse of discretion upon the part of the trial court. The notation amounts to no more than a shorthand rendition to the effect that in the doctor's opinion Price was malingering or feigning pain. If the notation is also construed to contain his opinion of his patient's motives we see no prejudice, under the circumstances, in the language used. See People v. Gorgol, 122 Cal.App.2d 281, 265 P.2d 69 (1953). Therefore, even if it might be considered error, it is harmless error. Rule 45, ARAP.
The second issue is whether...
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