*1 FULLER, Error, Joe Eldon Plaintiff
Myrtle LEMMONS, Defendant in Error.
No. 41084.
Supreme Court of Oklahoma.
April 1967. Dissenting Opinion
As Corrected July 10, 1967.
Rehearing July 11, Denied 1967.
Dissenting Opinion Sept. 26, 1967. Rehearing Sept. 26, 1967.
Second Denied
Covington Gibbon, by & Richard D. Gibbon, Tulsa, in error. Baker, Baker, Tulsa, Baker by Hughey & defendant McINERNEY, Justice.
Myrtle Lemmons (plaintiff) was passenger in an automobile driven by Roy Hopkins proceeding south on Sheridan in Tulsa. Eldon Avenue Joe (defendant) traveling Fuller east on Hopkins’ 4th Place and with collided automobile at controlled an intersection signals in- traffic where the two streets brought against tersect. Plaintiff an action Hopkins personal and defendant for injuries, and recovered Only against both. the defendant Fuller appealed. *2 presented you proposition of error tions that testified sole have here The jury?
by appeal concerns this had Dr. C. Dr. C. testified A I have. injury, injury right arm and a neck to her May approach MR. GIBBON: we gives in her back which “some condition Bench ? approximately per pain, her that she is (The following proceedings were then totally cent asked what disabled.” When had the hearing jury:) out of portion injured, neck was doctor MR. GIBBON: Comes now defend- responded, say injury in- “I would that the ant Fuller and asks that all the testi- 5th, probably 6th and cer- volves 7th the.— mony of this doctor be stricken from the vical vertebrae. Thoses are the usual record for reason he has testified vertebrae that arc involved in what we call findings x-rays about and has whiplash That’s a sudden move- lesion. stated that he findings used those in all body the head ment of the head on the gave conclusions that he to the body.” response to the neck on the x-rays Court here and the have not been following question, kind of “What inT introduced into evidence. vertebrae, jury happens to these —what MR. C. BAKER: Let the record Doctor, injury?” objection this to cause JAY they show are here for the defendants’ interposed following proceed- and the examination.” ings occurred: This motion was overruled. Now, 'Honor, “MR. GIBBON: Your going object we are to this unless hearing Court preliminary (witness) may I ask jury x-rays are in court if the — question ? defendant wants them. n i¡: “MR. n n n n They may HUGHEY BAKER: you THE COURT: What is it are ob- have them. jecting to? THE COURT: And are available to MR. GIBBON: He has you. asked now what is,
the condition I of these vertebrae Doctor, MR. C. BAKER: are these JAY want find x-rays out if the doctor took x-rays of Mrs. Lemmons? to determine that.” THE WITNESS: Yes. request. The court denied this MR. you HUGHEY BAKER: want Did “MR. GIBBON: Let the record show we them, gentlemen, to examine x-rays? any further pbject MR. x-rays. of this GIBBON: can’t (witness) findings examine as to his I don’t anything without know x-rays.” about them. introduction of the by On defendant, cross examination THE right. Anything COURT: All else following proceed- reveals the of this witness?” ' ings : Hopkins Counsel for defendant and then “Q Doctor, x-rays were there taken of cross examined the witness. At the con- Mrs. Lemmons at the time she first clusion of evidence and after hospital? seen at the rested, she had Hopkins and the de- A There were. fendant demurrers, entered their which Q you x-rays And have taken since that were following transpired: overruled. The time ? it, “THE COURT: I will overrule A I have. at this time I -wantto offer to counsel Q you And x-rays have used these Mr. Fuller x-rays all of these if he .making your conclusions determina- wants them. may pred- the record show foundation which it Let MR. GIBBON: rule, established, general and have not been icated. well they marked were not they plaintiff and that must be based permits which not in the record. *3 expert opinion to consider the in relation to They not in the were
THE COURT:
upon
based, applies
the facts
which it is
to
record,
by the
they
identified
hut
were
expert
testifying
regard
a medical
to
x-rays in this case.
as
the
Doctor
opinion
x-ray.
opinion
his
based on an
The
Well, he never removed
MR. GIBBON:
expert,
x-ray,’
the
of
on an
is
based
he,
envelope,
anything
did
sir?
x-ray
not admissible until
been
has
THE COURT: No.
admitted into evidence.
Okay.
MR. GIBBON:
pro
The contention that the mere
right.
THE
That
is
COURT:
x-rays upon
duction of the
which
(the
And are those
MR. GIBBON:
opinion
provides
is based
sufficient reason
x-rays) present
in that
at
this time
to abándon a well reasoned rule of law
They
offer?
are not here.
necessary
appears
is
If it
without merit.
”*
* *
right.
THE COURT: All
bring
court,
to
this cir
this evidence to
consistently
necessary
appear equally
held that the
This court has
cumstance would
opinion
require
of the
of a medical ex
offer of its admission into
admission
x-rays
pert,
upon
person
The
whole or in
on
evidence.
burden is
based
offering
opinion
support
properly
not
identified
fact
a
which have
as
evidence,
objection,
by evidence, and,
finding
is
of
fact
offered into
over
here,
Fisher,
presented
person
case such as
error. Bartlesville Zinc
v.
60
Co.
139,
476;
x-ray
support the
Tillman
must offer the
testi
Okl.
159 P.
Patrick &
v.
Matkin,
414;
232,
mony
expert
opinion
of
154
Anderson
of medical
whose
Okl.
7 P.2d
Pyle,
188,
damage
urged
a fact
& Prichard v.
159
14 P.2d
vertebrae is
Okl.
938;
The
jury.
for the
consideration
Southwestern Cotton Oil Co. v. State
294,
plain
Commission,
admission of Dr. C.’s
Industrial
167 Okl.
29
122;
Hendricks, Okl.,
disabled,
per
totally
P.2d
tiff
25
Simon
330
was
cent
with
v.
x-ray
supra,
P.2d 186.
In
at
out
which his
the Simon
evidence
188,
page
statement,
opinion
based,
is the
are
was
Since this
“We
opinion
of the med
went to the heart of the amount
admission
awarded,
liability
ical
X-ray photos
damages
if
is
as to what the
to be
established,
showed
it
not
without
the introduction
is
harmless error. South
Co.,
photos
supra.
western
reaching
reversible error.”
In
Cotton Oil
decision,
the court reconsidered the
liability in
The contested
this case
other
adopted
cases cited above and
rea
plaintiff. The
directly
did not
involve
soning contained therein.
the two
contest was between the drivers of
automobiles,
being merely a
plaintiff
The
contends that
this
apply
passenger
x-rays
should not
when the
who sued both drivers.
court,
evidence,
is
although
which
not offered
erroneous admission of
into
only the
objection.
appeal,
evidence after
A
the basis for this
concerns
medical ex
pert
sustained,
any,
always predicate
injuries
if
in the accident.
must
premises
certain
apparent Liability
of fact.
It
is
has been established
error
expert
finding
the medical
and
submitted as
based his
this
is not
injured
appeal.
the defendant
condition of
Therefore
vertebrae on
x-ray,
solely
which
trial
on the issue
is the best
entitled to a new
evidence
Okl.,
Therefore,
Francis,
what
P.2d
opinion,
damages.
shows.
404
Shinn v.
1017;
Schumacher, Okl.,
x-ray
not
has no
Hallford v.
989;
Parsons,
Matkin,
Lone Star
supra,
Gas Co.
Patrick & Tillman v.
stated, in
369. And see annota- we
paragraph
14 P.2d
second
Okl.
syllabus
in
a reversal evidence over ob- by ground X-rays used jection,” purpose should witness to medical formulate adequately necessity for such a rule injuries of her not for- extent were majority opinion. But I dis- mally warrant- introduced is not agree prior that our decisions have uniform- capa- photographs ed. ly consistently held that the formal interpreted, except ble of the rarest X-rays was an introduction of in evidence cases, only by physician or a trained reason, prerequisite. I For this absolute X-rays technician, by themselves, such retroactively the rule an- invoke cannot jury, judge, arc aid a trial of no majority nounced appellate court in determination their prospectively extend present case, but would al- party suffering whether application future its cases. leged injury. ques- If the defendant herein respectfully X-rays or dissent. authenticity tioned the