Prince v. Lowe, 5 Div. 601

• Decision Date: 24 February 1955
• Docket Number: 5 Div. 601
• Citation: 263 Ala. 410,82 So.2d 606
• Parties: W. M. PRINCE et al. v. Henry C. LOWE.
• Court: Alabama Supreme Court

Page 606

82 So.2d 606

263 Ala. 410

W. M. PRINCE et al. v. Henry C. LOWE.

5 Div. 601.

Supreme Court of Alabama.

Feb. 24, 1955.

Rehearing Granted June 23, 1955.

Further Rehearing Denied Oct. 13, 1955.

J. A. Walker, Jacob Walker, Jr., Walker & Walker, Opelika, for appellants.

L. J. Tyner, Opelika, for appellee.

MERRILL, Justice.

This is an appeal by the defendants in a damage suit from a judgment in favor of the plaintiff, Henry C. Lowe. The suit arose out of a collision of Lowe's automobile with defendants' truck and as a result of the collision Lowe received a broken back.

Assignments of error 4 to 16, inclusive, deal with objections to questions propounded by plaintiff to two doctors or with motions to exclude the answers after they were permitted. The chief objection assigned to the questions was that they called for hearsay testimony, although many other grounds of objection were stated.

Dr. Samford is a specialist in the field of X-ray and Dr. Owsley was Mr. Lowe's attending physician. Dr. Samford, Dr. Owsley and Dr. Jack Hughston held conferences dealing with the injuries to Mr. Lowe's back. Plaintiff showed more than once that Dr. Jack Hughston was 'the bone specialist' from Columbus, Georgia. Dr. Hughston was not present at the trial. Dr. Samford and Dr. Owsley each testified as to their individual diagnosis and prognosis of the case but, following that testimony, each was asked on direct examination what Dr. Hughston said in the conferences and whether the opinion or conclusion of the witness was concurred in by the other doctors. We quote these questions and answers from the record omitting the objections, the rulings of the court, the motions to exclude, the exceptions and a few nonpertinent remarks.

Testimony of Dr. Samford:

'Q. Now, will you tell the court and the jury what Dr. Hughston said in those conferences with respect to the diagnosis of Mr. Lowe's injuries and also with reference to the prognosis, the permanency of his injuries? A. As to the diagnosis we all agreed and I have given the diagnosis before.

'A. The other part of the question I believe was the prognosis. That was the conclusion of the diagnosis part of it. As I understood there were two parts. As to the prognosis he, Dr. Jack Hughston, thought that there would always be a weakness of that region, so that extreme or more than usual bending and heavy weight lifting would be a part of his activities that should probably, would probably be impossible.'

'Q. And that opinion, as expressed to you by Dr. Hughston in these conferences held by you, Dr. Hughston and Dr. Owsley, was that the joint opinion of all three doctors? A. That was our opinion.

'Q. The opinion of all three doctors? A. Yes, sir.

'Q. As expressed at the conference? A. Yes, sir.

'Q. Dr. Samford, in that conference you had with the other doctors with respect to Mr. Lowe's injuries he received in this accident, did Dr. Hughston state that it might be necessary to have another operation performed on Mr. Lowe's back? A. He did.

'Q. Now, Dr. Samford, will you explain to the jury and the court in greater detail as to what was said about the necessity, the possible necessity, of an operation? A. He said that there may have to be an operation performed to anchor those--to stiffen those joints to keep them from moving.

'Q. Now, Dr. Samford, the opinion that you have expressed, as having been expressed by Dr. Hughston in these joint conferences on the condition, diagnosis and prognosis of Mr. Henry Lowe, do you concur in his opinion as so expressed? A. I do.'

Testimony of Dr. Owsley:

'Q. Was your conclusion or your opinion or your judgment as to the permanence of his injuries concurred in by the other doctors in those conferences? A. Dr. Hughston, at the time of the operation, I mean at the setting of his back, was not able to get this bone back into direct alinement with the rest of his back. The reason he did not do it was because he was afraid to. It was already pressing on the spinal cord, and he was, not having it open where he could see it, he was afraid to put too much pressure. If you don't know how you set these backs, you hang a man up by his neck his, actually his legs, and it swings down between to a point to which it is attached and press on the back, and you get a tremendous amount of pressure there, and he was afraid to put too much pressure because he was afraid it would result in permanent paralysis due to moving that bone too much, so that's the reason it was left a little bit out of line, and he said at the time----

'A. He said at the time that Mr. Lowe would always have an unstable back, which means a weak back, because his ligaments were torn and because of inability to put this thing in the exact alinement that he would like to have.

'Q. Dr. Owsley, the statements you have just made to the court and the jury as being the statements of Dr. Jack Hughston were made by him in conference between you and Dr. Samford in conferences dealing particularly with the injuries of Mr. Henry Lowe, were they not? A. Correct.

'Q. And then you concurred in these statements of Dr. Hughston? A. Yes, Dr. Samford was present at this operation, and Dr. Hughston and I.'

The court announced that the record would show that the evidence was admitted on the authority of three cases: Grammer v. State, 239 Ala. 633, 196 So. 268; Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 165 So. 834 and Taylor v. Atlantic Coast Line R. Co., 232 Ala. 378, 168 So. 181.

The exact question before us has not been decided may times. In 1886 in the case of Village of Ponca v. Crawford, 18 Neb. 551, 26 N.W. 365, 367, a doctor was on the stand and testified in part as follows:

"Q. State, if you can, what caused that, or what it is (an enlargement of the breast). A. I don't exactly know what it is. I have been puzzled in my own mind in regard to it; so much so that I laid the case before Drs. Frazer, Biggs, and Clinger, of Sioux City, and they were not fully decided in their own minds as to what it was.

'Q. Were you present at the time of this alleged examination by those doctors? A. I was; yes, sir.

'Q. Did you take part in it? A. Yes, sir. * * *

'Q. State what you found as the result of that examination. A. They didn't decide fully what it was.

'Q. State more fully whether you took part in the examination, and in the forming of the opinion that resulted. A. Well, if you will allow me to explain, I took him into Dr. Frazer's office first, and told him there was a matter which I wanted his opinion about; and if he thought best, I wanted other opinions in regard to it. He said he would like to have Dr. Biggs see that also; so we had Dr. Biggs come in, and then we had Dr. Clinger come in, and they all examined that with him. All of us had hands in that examination, and each expressed his opinion of it after it was done. The result of that examination was that we decided that it was the result of an injury.

'Q. State your conclusion as to the result of that joint examination. A. I think we all decided that it was a tumor resulting from an injury."

The court then said:

'The admission of this testimony, so far as it applies to the expressions of opinion by the other physicians, was clearly incompetent and prejudicial. The examination was ex parte produced by defendant in error, and his son, without the knowledge of the plaintiff in error, its agents or attorneys. None of the physicians engaged in it were under oath, and no opportunity given the defendant to cross-examine them as to the basis of their conclusions. The testimony was upon an essential part of the case, and was simply hearsay. We know of no rule by which the testimony or opinions of expert witnesses may be produced in evidence, save by the usual methods of taking their testimony where the opinion rests upon the facts of the case on trial. If those doctors had opinions as to the cause of this enlargement, of which defendant in error desired the benefit, he should have placed them upon the witness stand in order that plaintiff in error might cross-examine them.'

The next case we find is that of Hussey v. State, 87 Ala. 121, 6 So. 420, 425, decided in 1888, where the court said:

'The testimony of Dr. Dement to the effect that other physicians concurred with him in his opinion as to the nature of the wound of the deceased was clearly hearsay, and not admissible. There is no more reason for permitting the unsworn assertions of experts to be detailed second-handed in court than the like testimony of other persons. Each is equally hearsay, within the strictest meaning of the term.'

In 1937 the Court of Appeals of Tennessee, upholding the lower court in excluding testimony of one doctor who related the opinion of another doctor, said in Tevis v. Proctor & Gamble Distributing Co., 21 Tenn.App. 494, 113 S.W.2d 64, 70:

'But the testimony offered violates the rule prohibiting hearsay evidence from being introduced, and also the rule requiring the best evidence to be produced. The witness sought to testify to statements of Dr. Spurling, thus violating the rule against hearsay evidence, and he also sought to testify as to the contents of a written report made by Dr. Spurling, thus violating the rule requiring the production of the best evidence.'

In the case of Bluebird Baking Co. v. McCarthy, Ohio App., 1935, 36 N.E.2d 801, 805, the court in holding that the lower court erred in permitting the witness, a local surgeon, to quote 'a reputably recognized brain specialist', cited with approval the following statement: '* * * 'the testimony of a physician that other physicians concurred with him in his opinion is hearsay.''

In Jones on Evidence, Civil Cases, 4th Ed. Vol. 1, p. 297, it is said: 'By hearsay is meant that kind of evidence which derives its value, not solely from the credit to be attached to the witness himself, but also in part because of the veracity and competency of some other person from whom the witness may have received...