Texas Employers Ins. Ass'n v. Crow

• Court: Texas Court of Appeals
• Writing for the Court: Grissom
• Citation: Texas Employers Ins. Ass'n v. Crow, 218 S.W.2d 230 (Tex. App. 1949)
• Decision Date: 04 February 1949
• Docket Number: No. 2709.,2709.
• Parties: TEXAS EMPLOYERS INS. ASS'N v. CROW.

218 S.W.2d 230

TEXAS EMPLOYERS INS. ASS'N v. CROW.

No. 2709.

Court of Civil Appeals of Texas. Eastland.

February 4, 1949.

Rehearing Denied March 4, 1949.

Appeal from District Court, Callahan County; J. R. Black, Judge.

Suit under the Workmen's Compensation Act between the Texas Employers Insurance Association, insurance carrier, and R. D. Crow, employee, to set aside an award of the Industrial Accident Board. From a judgment for the employee, the insurance carrier appeals.

Judgment affirmed.

McMahon, Springer & Smart, of Abilene, for appellant.

Letcher D. King, of Abilene, and Alfred M. Scott, of Austin, for appellee.

GRISSOM, Chief Justice.

This is a workman's compensation case. Trial resulted in a judgment for the employee against his employer's insurance carrier for 45 weeks' accrued compensation at the rate of $20 per week and 107 weeks' compensation to accrue at the rate of $20 per week. The insurance carrier has appealed.

Appellant's point one is that the court erred in permitting the X-ray pictures introduced in evidence to be taken into the jury room during its deliberation. The X-ray pictures, taken by both appellant's doctor witnesses and appellee's doctor witness, were introduced in evidence, placed in the view box, and interpreted by said doctors in the presence of the jury. After the jury retired to consider its verdict, at its request and on appellee's motion, these X-ray photographs were sent to the jury room. Appellant's objection was stated as follows:

"* * * that said pictures are technical and susceptible of only technical interpretation and explanation; that permitting the jury to have the use thereof for their deliberation is inflammatory and prejudicial, and permits the jury to consider matters reflected therefrom which are not the subject of any testimony introduced in the trial of the cause; further, because the jury does not have in its deliberation, in connection with said pictures, the benefit of expert advice or service but are able to form their own conclusions therefrom, said pictures being a matter of technical interpretation and probably will lead to erroneous and improper conclusions by the jury."

Texas Rules of Civil Procedure, rule 281, provides that the jury may take with it in its retirement "any written evidence" except depositions. Appellant admits that ordinary photographs fall within the category of "written evidence" as used in R.C.P. 281, and that they may be taken into the jury room and considered by the jury in its deliberation. Many cases have so held. See Dallas Ry. & Terminal Co. v. Orr, Tex.Sup., 215 S.W.2d 862, 866; 41 Tex.Jur. 856; Younnger Bros. v. Ross, Tex.Civ.App., 151 S.W.2d 621, 626; Dallas Ry. & Terminal Co. v. Durkee, Tex.Civ. App., 193 S.W.2d 222, 227; United Employers Casualty Co. v. Smith, Tex.Civ.App., 145 S.W.2d 249, 250. Appellant argues that X-ray photographs are not written evidence, within the meaning of said rule, because they do not tell a story to the layman, but only to the expert; that erroneous conclusions would be drawn therefrom by a layman and he would be horrified by the gruesome spectacle revealed by X-ray pictures. It has been held that the gruesomeness of a photograph does not render it inadmissible. Breeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376. See 32 C.J.S., Evidence, § 712, p. 615, note.

X-ray photographs, identified and shown to have been properly taken and developed, are admissible in evidence. Federal Underwriters Exchange v. Cost, 132 Tex. 299, 307, 123 S.W.2d 332; Texas Employers' Ins. Ass'n v. Cheek, Tex.Civ.App., 63 S.W.2d 1103, 1105; 17 Tex.Jur. 736. In this respect they stand upon the same basis as other photographs. McMillian v. State, 92 Tex.Cr.R. 474, 244 S.W. 512; Pecos & N. T. Ry. Co. v. Winkler, Tex.Civ. App., 179 S.W. 691, 697; Clark v. Reising, 341 Mo. 282, 107 S.W.2d 33, 35; Southern Underwriters v. Waddell, Tex.Civ.App., 144 S.W.2d 637, 640; Houston & T. C. R. Co. v. Shapard, 54 Tex.Civ.App. 596, 118 S. W. 596, 601, writ ref.; Missouri, K. & T. Ry. Co. of Texas v. Heacker, Tex.Civ.App., 168 S.W. 26, 27, writ dis.; International Brotherhood of Boilermakers, Iron Shipbuilders & Helpers of America, v. Huval, Tex.Civ.App., 154 S.W.2d 233, 235, reversed on other grounds, 140 Tex. 21, 166 S.W.2d 107; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753, 758, affirmed 132 Tex. 172, 123 S.W.2d 314; Texas Indemnity Ins. Co. v. Phillips, Tex. Civ.App., 153 S.W.2d 503, 505; 32 C.J.S., Evidence, §§ 711, 712, pages 614, 616.

"While a picture produced by an X-ray cannot be verified as a true representation of the subject in the same way that a picture made by a camera can be, the rule in regard to the use of ordinary photographs on the trial of a cause applies to photographs of the internal structure and conditions of the human body taken by the aid of X-rays, and such a photograph, when verified by proof that it is a true representation, is admissible in evidence." 22 C.J. 916.

It has been held that under R.C.P. 281 the jury may take with it in its retirement a note introduced in evidence, notwithstanding the genuineness of the signature thereto was denied and that by so doing, the jurors were permitted to make a comparison of the signature on the note with the admitted signatures of appellant and to thereby become witnesses, in the nature of experts, by comparing the signatures. Joffre v. Mynatt, Tex.Civ.App., 240 S.W. 319, 324.

It has likewise been held proper, under R. C. P. 281, for the jury to take with it in its retirement an abstract of title introduced in evidence in a suit in trespass to try title. Frugia v. Trueheart, 48 Tex.Civ. App. 513, 106 S.W. 736, 740, writ ref. Also, contracts and receipts, insurance policies, deeds and surveyor's reports and maps. See 41 Tex.Jur. 856; San Antonio & A. P. Ry. Co. v. Barnett, 12 Tex.Civ.App. 321, 34 S.W. 139; Kuntz v. Spence, Tex.Civ. App., 48 S.W.2d 413, 419, reversed on other grounds, Tex.Com.App., 67 S.W.2d 254; West v. Houston Oil Co. of Texas, 56 Tex. Civ.App. 341, 120 S.W. 228, writ ref.; Kennedy v. Upshaw, 64 Tex. 411; Bankers Life Co. of Des Moines, Iowa v. Butler, Tex.Civ.App., 122 S.W.2d 1077.

It has been held that the jury may take with it in its retirement instruments introduced in evidence where the genuineness of the handwriting is in question, and that the jurors may then examine same with a microscope for the purpose of passing upon the genuineness of the signature thereto. In re Thomas' Estate, 155 Cal. 488, 101 P. 798, 802; 53 Am.Jur. 663; 64 C.J. 1033. See also United Employers Casualty Co. v. Smith, Tex.Civ.App., 145 S.W.2d 249, 250, writ ref.; Smith v. Young, Tex.Civ.App., 147 S.W.2d 859, 861; Texas Employers Ins. Ass'n v. Applegate, Tex.Civ.App., 205 S.W. 2d 412, 414; Higgins v. Los Angeles Gas & Electric Co., 159 Cal. 651, 115 P. 313, 34 L.R.A.,N.S., 718.

Appellant's contention finds some support in Maryland Casualty Co. v. Dicken, Tex.Civ.App., 80 S.W.2d 800, 804. However, the general rule appears to be that an X-ray photograph is the best evidence of what is shown thereby, as in the case of an ordinary photograph. 32 C.J.S., Evidence, § 792, page 722. It has been held that the opinion of experts as to what an X-ray picture shows is the best evidence thereof. Maryland Casualty Co. v. Dicken, supra. However, the majority of the decisions and, in our opinion, the better reasoning are to the contrary. See 32 C.J. S., Evidence, § 792, page 723; 22 C.J. 916; American National Ins. Co. v. Points, Tex. Civ.App., 81 S.W.2d 762, 766, writ dis. See also Utilities Indemnity Exchange v. Burks, Tex.Civ.App., 7 S.W.2d 1112, 1114; Texas Employers Ins. Ass'n v. Reid, Tex. Civ.App., 209 S.W.2d 1016, 1022; Traders & General Ins. Co. v. Collins, Tex.Civ. App., 179 S.W.2d 525, 528. If X-ray photographs are the best evidence of what they show, appellant's objection that they are only susceptible of expert interpretation, which we consider is, in effect, an objection that an expert's interpretation is the best evidence of what the photographs reveal, is not well taken.

We hold that the X-ray pictures constitute "written evidence," within the meaning of R.C.P. 281, and the court, therefore, did not err in permitting them to be taken to the jury room during the jury's deliberation. Point one is overruled.

Appellant's second point is to the effect that the court erred in not sustaining appellant's objection to the argument of appellee's counsel and in failing to instruct the jury that there was no evidence in the record that appellee quit his job because he was afraid he was going to get fired. The point arose in this manner: appellee did so testify, but appellant's objection thereto was sustained. Appellee's counsel was arguing to the jury, in substance, that appellee had testified that after the injury to his arm, when he went back to his old job of operating a road scraper, he did not use his left arm, which had been broken, while he was doing that kind of work; that he went back to work for his old employer on the 10th day of September and continued to work for him until January 22nd when he quit "because he was afraid he was going to get fired."

Appellee contends that such argument was not erroneous because the trial court erred in sustaining the objection to appellee's testimony that he quit because he was afraid he would be fired. It was error to argue to the jury any evidence stricken by the trial court, regardless of whether the court was correct in striking it. Appellee has cross-assigned error to the action of the court in sustaining the objection to such testimony. However, we have concluded, regardless of whether or not the court was correct in sustaining the objection to appellee's testimony that he quit work because he was afraid he was going to get fired, that appellant could not have been injured by such argument. It was undisputed that on July 10, 1947, appellee broke his left arm between the wrist...