Texas Employers Ins. Ass'n v. Crow

218 S.W.2d 230, 1949 Tex. App. LEXIS 1571
CourtCourt of Appeals of Texas
DecidedFebruary 4, 1949
DocketNo. 2709
StatusPublished
Cited by15 cases

This text of 218 S.W.2d 230 (Texas Employers Ins. Ass'n v. Crow) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Employers Ins. Ass'n v. Crow, 218 S.W.2d 230, 1949 Tex. App. LEXIS 1571 (Tex. Ct. App. 1949).

Opinion

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 he 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 [232]*232of 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. Dick-en, 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.,

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