Davis v. Ark. Best Freight System

393 S.W.2d 237, 393 S.W.2d 337, 239 Ark. 632, 17 A.L.R. 3d 986, 1965 Ark. LEXIS 1046
CourtSupreme Court of Arkansas
DecidedJune 7, 1965
Docket5-3495
StatusPublished
Cited by19 cases

This text of 393 S.W.2d 237 (Davis v. Ark. Best Freight System) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Ark. Best Freight System, 393 S.W.2d 237, 393 S.W.2d 337, 239 Ark. 632, 17 A.L.R. 3d 986, 1965 Ark. LEXIS 1046 (Ark. 1965).

Opinions

Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case. Sidney Davis (claimant and appellant), an employee of Arkansas Best Freight System (appellee) claimed that on December 30, 1960 he suffered a heart attack which arose out of and in the course of his employment. He testified that on December 30, 1960 he drove a truck and trailer loaded with pipe from Little Bock to Crossett; that he experienced considerable difficulty in Crossett in detaching the trailer from the truck and thereby overexerted himself; and that he suffered a heart attack shortly thereafter. The employer resisted the claim, insisting that there was no causal connection between the work appellant did and his heart ailment. The Beferee disallowed the claim; the Full Commission disallowed the claim; the Circuit Court affirmed the Commission; and the case is here on appeal. There is no necessity to state the facts in detail because this appeal does not challenge the finding of the Commission on the sufficiency of the evidence. Bather, the challenge here is that the Commission committed errors of law. We will, discuss the more important ones that appellant urges.

I. Allowing A Witness To Bead From A BooTi On Direct Examination. At the hearing before the Beferee the employer called Dr. Drew Agar as its witness and he testified that in his opinion there was no causal connection between claimant’s work and his heart attack. On .direct examination the Beferee allowed Dr. Agar to support his opinion evidence by reading typewritten excerpts from several medical textbooks and writers.1 The claimant duly preserved Ms objections and so we now bave before us tbe question whether a doctor- — on direct examination — may support bis own opinion evidence by reading excerpts wbicb he bas copied from medical textbooks and from tbe writings of other doctors.

It is true that tbe Workmen’s Compensation Commission is an administrative agency and that tbe technical rules of evidence do not apply to its procedure (Ark. Stat. Ann. § 81-1327 [B.epl. I960]),2 nevertheless it bas been repeatedly held that a litigant bas tbe right to cross-examine a witness. In 58 Am. Jur. 339 tbe text summarizes tbe holdings:

. ‘ ‘ Tbe cross-examination of witnesses is one of' tbe safeguards to accuracy and truthfulness. Tbe test of cross-examination is tbe highest and most indispensable known to tbe law for discovery of truth. When a witness bas been examined in chief, tbe other party bas tbe right to cross-examine for tbe purpose of ascertaining and exhibiting tbe situation of tbe witness with respect to tbe parties and to tbe subject of tbe litigation, bis interest, bis motive, bis inclinations, bis prejudices, bis means of obtaining a correct and certain knowledge of tbe facts to wbicb be bas borne testimony, tbe manner in which be bas used those means, and bis powers of discernment, memory, and description. Tbe purposes of tbe cross-examination is to test tbe truthfulness of the witness, to sift, modify, or explain what bas been said, to develop new or old facts in a view favorable to tbe cross-examiner, or to discredit tbe witness, and, if be is tbe plaintiff, to test bis good faith — tbe righteousness of bis case . . . In a judicial investigation tbe right of cross-examination is absolute, and not a mere privilege of tbe one against whom a witness may be called. In a civil action a party has the right to cross-examine .witnesses against him whether the evidence is given ore tenns or by deposition. ’ ’

Certainly, here, the claimant had no opportunity to cross-examine the writers of the textbooks and medical treatises which Dr. Agar used to support and bolster his own testimony. We have held that in a court trial a doctor cannot support his own testimony by reading from a medical textbook.3 In Moore v. State, 184 Ark. 682, 43 S. W. 2d 228, we said:

“The extracts from the medical and law books were not competent, and the court did not err in refusing to permit appellant to introduce them.
“ ‘It is very generally recognized that extracts from medical books are not admissible in evidence, and for the very sufficient reason that the author does not write under the sanctity of an oath and has not been subjected t.o a cross-examination, and the decisions of this State are to the effect that statements from these books may not be presented as such in the arguments of counsel or introduced by the means of questions put on cross-examination as by reading an opposing opinion from textbooks, and asking the witness if it is or is not true; for this would have the effect of putting the statement in evidence and thus accomplishing by indirection what is forbidden.’ State v. Summers, 92 S. E. 328. “The correct rale is that an attorney may use a medical book to aid him in framing questions to be asked of a physician testifying as an expert, but it is not permissible to read from such books to the jury . . .
“The witness, Dr. Foltz, put on the stand by the appellant, and was on direct examination. On cross-examination of an expert witness, where he bases his opinion on a textbook, he may be cross-examined, and for the purpose of impeaching him, extracts from the authorities may be read; but it is never proper to introduce the books, or extracts from them, except on cross-examination. ’ ’

The Commission may quote from medical books to explain the findings; but a doctor called to express his opinion; must express his own opinion so that he may be cross-examined. He cannot on direct examination bolster his own opinion by quoting from some other doctor who is not subject to cross-examination.

II. Refusal To Allow A Letter For Impeachment. After Dr. Agar testified on direct examination the claimant’s attorney sought to impeach him by a letter which Dr. Agar had written involving another patient. Dr. Agar had been testifying that work did not cause a heart attack and he had written a letter which indicated the contrary. The claimant’s attorney" offered the entire letter, but the only part allowed was the last sentence. In order to get the setting, we quote the last paragraph of the letter and emphasize the only sentence in the letter that was allowed for cross-examination and impeachment :

“It would appear from the history that Mr. Holmes has suffered two coronary occlusions, the first in 1957 doing heavy work and the second in 1960 again doing-heavy work. It also appears from the history that during the time Mr. Holmes was engaged in light work as a result of his first heart attack he had practically no symptoms of cardiac disease. However when he again engaged in heavy work involving the lifting of 75 to 100 pound weights he again had chest pains and had another coronary occlusion. It would appear therefore that there was a causal relationship between his work that he was doing on June 24th, 1960 and his subsequent heart attack. It is my professional opinion that there is a definite relationship in this case.”

In order to get the full effect of the attempted impeachment, certainly the claimant should have been allowed to introduce the letter and not merely one sentence from it.

III. Refusal To Allow Claimant To Offer Rebuttal Evidence. On December 6, 1962 the Commission closed the case and heard arguments.

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Davis v. Ark. Best Freight System
393 S.W.2d 237 (Supreme Court of Arkansas, 1965)

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Bluebook (online)
393 S.W.2d 237, 393 S.W.2d 337, 239 Ark. 632, 17 A.L.R. 3d 986, 1965 Ark. LEXIS 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-ark-best-freight-system-ark-1965.