Carvell v. Winn

154 So. 2d 788
CourtLouisiana Court of Appeal
DecidedJune 18, 1963
Docket859
StatusPublished
Cited by31 cases

This text of 154 So. 2d 788 (Carvell v. Winn) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carvell v. Winn, 154 So. 2d 788 (La. Ct. App. 1963).

Opinion

154 So.2d 788 (1963)

Lucille Thibodeaux CARVELL, Plaintiff-Appellee,
v.
Edith WINN et al., Defendants-Appellants.

No. 859.

Court of Appeal of Louisiana, Third Circuit.

June 18, 1963.
Rehearing Denied July 9, 1963.

*789 Simon & Trice, by J. Minos Simon and Phil Trice, Lafayette, for plaintiff-appellee-appellant.

McBride & Brewster, by William H. McBride, Lafayette, for defendant-appellant-appellee.

Davidson, Meaux, Onebane & Donohoe, by Richard C. Meaux, Lafayette, for third-party defendants-appellees.

Before TATE, HOOD, and CULPEPPER, JJ.

TATE, Judge.

Mrs. Carvell, the plaintiff, was injured when the car in which she was riding was struck from the rear by an automobile *790 driven by Miss Edith Winn. The plaintiff sues Miss Winn and the latter's liability insurer to recover for her personal injuries.[1]

Miss Winn's negligence is stipulated, and the only issue at the trial was the amount of damages to which the plaintiff was entitled.

The case was tried before a jury, which rendered a verdict in favor of the plaintiff in the amount of $7000. Both the plaintiff and the defendants have appealed.

The plaintiff contends that the award was insufficient, the defendants that it was excessive. In connection with these contentions, the issues of the appeal presented for our determination concern: (1) The trial court's permitting a Texas chiropractor to testify as an expert; (2) the trial court's exclusion from the evidence of a cineradiographic (movie X-ray) film; and (3) the amount of the award.

1. Texas chiropractor testifying as expert.

The trial court permitted W. D. Harper, a doctor of chiropractic, to testify as an expert witness in the field of chiropractic and physiology. The defendants claim that the admission of this witness's testimony as an expert or for any purpose was erroneous, while the plaintiff contends that the trial court erroneously limited the scope of his testimony.

The witness Harper holds a doctor's degree in chiropractic and is licensed to practice as such in three states, with licensee requirements including his passing examinations in the basic sciences of anatomy, physiology, chemistry, hygiene, public health, pathology and bacteriology. He has taught at the Texas Chiropractic College since 1946 and is now the Dean of said institute.

The general rule as stated at 20 Am. Jur. "Evidence" Section 786 at p. 660 is that: "The determination of the question of the competency and qualifications of one offered as an expert witness is addressed to the judicial discretion of the trial judge before whom the testimony is offered, and his ruling in passing on the qualifications of such proposed expert witness will not be disturbed unless the error is clear and involves a misconception of the law * * *." See also 5A C.J.S. Appeal and Error § 1604(4), p. 94 and 32 C.J.S. Evidence § 458b, p. 99.

Accordingly, it has consistently held that there is no abuse of discretion in allowing a chiropractor to testify in a personal injury action, where a proper foundation is laid and the matter is within the scope of the profession and practice of chiropractic. Annotation, "Chiropractor's Competency as expert in personal injury action", 52 A.L.R.2d 1385; 32 C.J.S. Evidence § 537, p. 265.

The defendants' chief objection to admitting the testimony of Dr. Harper as an expert or for any purpose is that the practice of chiropractic as such is not authorized in Louisiana, at least unless the practitioner possesses the same qualifications of education from an accredited medical school and passes the same examinations as are required of (in the layman's term) "medical" doctors. England v. Louisiana State Board of Medical Examiners, La.App. 1 Cir., 126 So.2d 51, certiorari denied. However, the fact that a witness is not licensed to practice under the laws of the jurisdiction is immaterial insofar as concerns his competency to testify as an expert, which is based upon his specialized training, knowledge, and experience. See Meyers v. Wells, Mo., 273 S.W. 110 (1925). We therefore find no error on the part of *791 the trial judge in admitting Dr. Harper as an expert witness.

On the other hand, counsel for the plaintiff urges that the trial judge erred in refusing to allow this witness to give an opinion as to the possible causal connection between the plaintiff's alleged neck and back injury and certain physical ailments of which she subsequently complained, such as tonsilitis, vaginal bleeding, a burning of the eyes, and stomach trouble. Plaintiff contends that, since the trial court accepted Dr. Harper as an expert witness on chiropractic and physiology, it should have allowed him to give his opinion as to any such causal relationship.

The trial court permitted the witness to testify, on the basis of the physiology of the body, of the possible physical connection between such internal ailments and the ligamental and nerve injuries received in the accident; but it refused to let the witness testify to his opinion as to the actual causal relationship between the trauma sustained and these physical ailments from which the plaintiff suffered later. The trial court held that such opinion testimony was beyond the field of the doctor's competence under the facts shown by this record.

As previously stated herein, whether or not a witness meets the qualifications to testify as an expert is largely within the discretion of the trial judge. In our opinion, it is also largely within the discretion of the trial judge to determine the competency of expert witnesses to testify to specialized areas of inquiry not necessarily within his general competency to give an opinion as an expert, or at least not shown to be so by the facts of the record. That is, the trial court is not under a mandatory duty to permit an expert witness to testify to any matter upon which the expert himself says he is qualified to give an expert opinion; the court must have some discretion to limit the witness's testimony as an expert to the actual field of his expertise and as applicable to the facts of the particular litigation then before it (subject of course to a showing that the court abused its discretion in this regard, State v. Carter, 217 La. 547, 46 So.2d 897).

Thus, referring to the ability of a witness to testify as an expert based upon his "experiential capacity", Dean Wigmore noted that "The capacity is in every case a relative one, i. e., relative to the topic about which the person is asked to make the statement * * *. His fitness, then, is a fitness to answer on that point. He may be fitted to answer about countless other matters, but that does not justify accepting his views in the matter in hand." 2 Wigmore on Evidence (3rd ed., 1940), Section 555(1) at p. 634. "In most jurisdictions it is repeatedly declared that the decision upon the experiential qualifications of witnesses should be left to the determination of the trial court", referring to "the fact of the possession of the required qualification by a particular witness." Ibid, Section 561, p. 641. Cf. LSA-R.S. 15:466; State v. Mills, 229 La. 758, 86 So.2d 895 (syllabus 8).

We think that the trial judge should be given some latitude in the determination of questions of this nature, and insofar as the instant case is concerned, we fail to see where the trial judge has abused his discretion.

2. Refusal to admit X-ray motion picture into evidence.

In connection with the testimony of Dr.

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