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alone competent to testify as to the effect of particular drugs on the human system;36 though medical experts may properly testify as to the effect of poisons from information derived from the writings of standard authors on the subject.37 And one who had made a chemical analysis of the stomach of a person alleged to have been poisoned may testify as an expert concerning the effect of strychnin upon the human stomach and upon the human system, where he is a chemist and toxicologist, though not a physician and surgeon.38

556. The question of sham or pretended injury or disease.—A physician or medical expert who had examined or treated a person claiming to be ill or injured is competent to give an opinion from the general appearance, actions, and looks of the patient, and from his examination and statements, as to whether or not his trouble or injury was imaginary, feigned, or real.39 And an opinion of a medical expert that physical defects found upon examination of the person are such that they could not have been produced by simulation is competent, and clearly within the domain of expert testimony.10 A phy

State v. Perry, 41 W. Va. 641, 24 S. E. 634; Polk v. State, 36 Ark. 117; Soquet v. State, 72 Wis. 659, 40 N. W. 391. Contra, Siebert v. People, 143 Ill. 571, 32 N. E. 431.

But a practising physician who is a graduate of a college of medicine and surgery is competent to express his opinion as to whether a given case is one of poisoning or not; though it did not appear that he had ever treated a person who had been poisoned, or had ever seen one treated, the weight of his testimony being a question for the jury. People v. Thacker, 108 Mich. 652, 66 N. W. 562.

"Carter v. State, 2 Ind. 617; People v. Benham, 160 N. Y. 402, 55 N. E. 11. And see Hoard v. Peck, 56 Barb. 202; Mutual L. Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294.

And a generally competent practitioner of medicine who has made a special study of toxicology is competent to testify as an expert with reference to poisoning from a cyanid though he never attended a patient suffering in that way. Germania L. Ins. Co. v. Rose Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 Pac. 488.

And the opinion of a medical practitioner of long experience in the practice of his profession, that a death was caused by arsenical poisoning, is not rendered incompetent by an admission on his part that his opinion was based

in part upon the fact that there was arsenic in the house of the deceased person; the admission going to his credit, and not to his competency. Mitchell v. State, 58 Ala. 417.

38 State v. Cook, 17 Kan. 392.

39 Brown v. Third Ave. R. Co. 19 Misc. 504, 43 N. Y. Supp. 1094; Chicago, R. I. & T. R. Co. v. Boyles, 11 Tex. Civ. App. 522, 33 S. W. 247; McGrew v. St. Louis, S. F. & T. R. Co. (Tex. Civ. App.) 74 S. W. 816; Quaife v. Chicago & N. W. R. Co. 48 Wis. 513, 33 Am. Rep. 821, 4 N. W. 658.

And an opinion by a physician based upon actions and looks of a patient, and what she said, is not incompetent, where the witness had sworn that he could find nothing in her physical condition that indicated the existence of pain, upon the theory that his opinion could only be an opinion on the veracity of his patient. Quaife v. Chicago & N. W. R. Co. 48 Wis. 513, 33 Am. Rep. 821, 4 N. W. 658.

And a question asked a physician in an action for a personal injury, if it was not possible for a person to simulate complaints of severe pain so as to deceive a physician, does not constitute an attack on the plaintiff's character. Chicago, R. I. & T. R. Co. v. Boyles, 11 Tex. Civ. App. 522, 33 S. W. 247.

Harrold v. Winona & St. P. R. Co. 47 Minn. 17, 49 N. W. 389; Missouri, K. & T. R. Co. v. Wright, 19 Tex. Civ.

sician is not competent, however, to give his opinion that a plaintiff in an action for a personal injury was shamming before the jury, a physician being no better qualified on that subject than the jurors.*1 And a medical expert cannot give his opinion on the question whether or not a person claiming injury or illness is a malingerer.42 And an opinion that a person was simulating pain or suffering is incompetent, when based upon personal acquaintance with such person, or some other reason not within the range of expert testimony.43 Nor can such an opinion be based upon mental process; to be admissible it must be founded on physical condition either as seen or described.44

557. The question of weight.-As in case of expert evidence generally, the jury is the judge of the weight to be attached to the opinions of medical experts.45 Jurors are not controlled by medical opinions; the medical expert cannot be put in the place of the jury, and allowed to decide the case.46 Such opinions are to be considered in connection with the other evidence, and given just weight; but the jury must determine for itself, from the whole evidence, the question at issue;* .47 and their value must be made to depend upon the agreement or nonagreement of the facts assumed as their basis with the actual facts of the particular case,48 and upon the opportunities of the witness to ac

App. 47, 47 S. W. 56; Chicago Union
Traction Co. v. Fortier, 205 Ill. 305, 68
N. E. 948.

the jury to the conclusion that a medical opinion must prevail in the absence of contradictory testimony, without regard to testimony introduced for the purpose of impeachment, is erroneous. 42Brown v. Third Ave. R. Co. 19 Misc. Miller v. Mutual Ben. L. Ins. Co. 31 504, 43 N. Y. Supp. 1094.

"Cole v. Lake Shore & M. S. R. Co. 95 Mich., 77, 54 N. W. 638.

Chicago, R. I. & T. R. Co. v. Boyles, 11 Tex. Civ. App. 522, 33 S. W. 247. And testimony of a physician that he would not have treated a patient if he had believed that he was simulating is incompetent and improper, though not such as would ordinarily require a reversal. Ibid.

"Chicago Union Traction Co. v. Fortier, 205 Ill. 305, 68 N. E. 948.

45Tatum v. Mohr, 21 Ark. 349; Washington v. Cole, 6 Ala. 212; People v. Phelan, 123 Cal. 551, 56 Pac. 424; Miller v. Mutual Ben. L. Ins. Co. 31 Iowa, 216, 7 Am. Rep. 122; Siebert v. People, 143 Ill. 571, 32 N. E. 431; Roberts v. Johnson, 58 N. Y. 613; People v. Benham, 160 N. Y. 402, 55 N. E. 11; State v. Wilcox, 132 N. C. 1120, 44 S. E. 625. And an instruction which will lead

Iowa, 216, 7 Am. Rep. 122.

Delafield v. Parish, 25 N. Y. 115; Sanders v. State, 94 Ind. 147; Goodwin v. State, 96 Ind. 550; Re Blakely, 48 Wis. 294, 4 N. W. 337; Travelers' Ins. Co. v. Thornton, 119 Ga. 455, 46 S. E. 678; State v. Owen, 72 N. C. 605.

Goodwin v. State, 96 Ind. 550; State v. Johnson, 66 S. C. 23, 44 S. E. 58.

The question of the effect upon the weight of a medical opinion as to the existence of a fracture, of the fact that it was formed from an examination made by the X-ray process of determining whether a fracture had existed, is one for the jury. Miller v. Dumon, 24 Wash. 648, 64 Pac. 804.

48 Woodward v. Iowa L. Ins. Co. 104 Tenn. 49, 56 S. W. 1020; Clark v. State, 12 Ohio, 483, 40 Am. Dec. 481.

quire skill and knowledge and the use he made of these opportunities.4

49

When, however, the case concerns a highly specialized branch of the medical art, with respect to which a layman could have no knowledge, the court must be dependent upon expert testimony; and in such cases, in the absence of such evidence, it is improper to submit the case to the jury.50 And evidence of medical and scientific persons, physicians, surgeons, and chemists, by whom a body had been inspected and examined either at the time of its discovery or shortly after, and their opinions with reference to it, are competent and of great value in a prosecution for homicide, in establishing the corpus delicti. But such opinions can only be regarded as scientific, so as to be entitled to additional weight so far as they relate to physical man, and his diseases, and their means of cure.52 And where a medical opinion is given by a physician, it becomes a proper subject for cross-examination for the purpose of ascertaining his qualifications and fairness and impartiality, and the consequent weight to which his opinion is entitled;53 and for this purpose he may be asked as to his experience and reading in similar cases,54 and as to his treatment

"State v. Wilcox, 132 N. C. 1120, 44 S. E. 625; Roberts v. Johnson, 58 N. Y. 613; People v. Benham, 160 N. Y. 402, 55 N. E. 11; Washington v. Cole, 6 Ala. 212.

It is a self-evident fact that a physician who has seen, examined, and treated a physical injury, if he is skilful, is better qualified by reason of his superior information to judge of the character and extent of the injury, than one who forms his opinion from a mere verbal description of the injury; and an admission to that effect secured from a physician on cross-examination cannot be said to be prejudicial. Robinson v. St. Louis & Suburban R. Co. 103 Mo. App. 110, 77 S. W. 493.

50 Ewing v. Goode, 78 Fed. 442. And see Clark v. State, 12 Ohio, 483, 40 Am. Dec. 481.

And while the opinion of a physician as to the length of time a disease has existed, predicated upon the present symptoms, is not equal in value to positive proof of the fact of its existence, such an opinion based upon personal examination should not be discredited by the court, by a charge that the testimony of physicians is matter of opinion only. Bennett v. Fail, 26 Ala. 605. Pitte v. State, 43 Miss. 473.

Delafield v. Parish, 25 N. Y. 115; Carpenter v. Calvert, 83 Ill. 62; Re Blakely, 48 Wis. 294, 4 N. W. 337.

And a medical opinion in a case, bearing upon the degree of cerebral disease indicated by apoplexy, paralysis, loss of speech, convulsions, and other physical symptoms, is to be regarded as the opinion of an expert; but so far as it rests upon evidence going to show a want of intellect, directly, and not merely as the result of disease, it derives little, if any, additional force from the professional education of the witness. Delafield v. Parish, 25 N. Y. 115; Re Blakely, 48 Wis. 294, 4 N. W. 337.

Barr v. Kansas City, 121 Mo. 22, 25 S. W. 562; Birmingham R. & Electric Co. v. Ellard, 135 Ala. 433, 33 So. 276.

Rowell v. Lowell, 11 Gray, 420; State v. Chiles, 44 S. C. 338, 22 S. E. 339; McGovern v. Hays, 75 Vt. 104, 53 Atl. 326.

And a question addressed to a medical expert on cross-examination, where he had testified in chief as to hysteria and its causes, and stated that the plaintiff had the appearance of an hysterical person, as to whether a patient is any more responsible for an hysterical condition than any other condition. is proper, it being competent to test his

of the patient and the nature of the case in hand.55 Nor is it improper on cross-examination to ask physicians who attended an injured person, by whom they were sent and paid.58 And it may be shown that a medical expert charged or expected to receive greater compensation than the fees allowed by law, and that he is in the employ of one of the litigants regularly or frequently as an expert witness.57 Where physicians testify as to matters within their personal knowledge, their testimony is to be weighed like that of other witnesses;58 and they may be impeached in the same way."

59

558. Expert evidence as to other particular subjects.-For further instances and examples of medical expert testimony see ante, chapter XIX., MALPRACTICE, §§ 516, 517, 518; chapter XXI., ABORTION, § 525; chapter XXIV., IDENTIFICATION, § 539; chapter xxv., SurVIVORSHIP, § 540; chapter xxvI., RAPE, §§ 543, 544; and see infra, this chapter. As to expert evidence of insanity, see volume I., chapter XX., subd. III.

II. MEDICAL BOOKS.

559. The general rules as to admissibility.-The general rule is that text-books on medicine and surgery, though standard authority on the subject, cannot be read to a jury as independent evidence of the opinions or theories therein expressed or advocated, except for

knowledge as to hysteria. Birmingham R. & Electric Co. v. Ellard, 135 Ala. 433, 33 So. 276.

Batten v. State, 80 Ind. 394. Chicago City R. Co. v. Carroll, 206 Ill. 318, 68 N. E. 1087.

Chicago City R. Co. v. Handy, 208 Ill. 81, 69 N. E. 917.

60

N. W. 295; People v. Goldenson, 76 Cal. 328, 19 Pac. 161; Gallagher v. Market Street R. Co. 67 Cal. 13, 56 Am. Rep. 713, 6 Pac. 869; Johnston v. Richmond & D. R. Co. 95 Ga. 685, 22 S. E. 694; Quattlebaum v. State, 119 Ga. 433, 46 S. E. 677; Gale v. Rector, 5 Ill. App. 481; Carter v. State, 2 Ind. 617; State v. Peterson, 110 Iowa, 647, 82 N. W. 329; Stewart v. Equitable Mut. Life Asso. 110 Iowa, 528, 81 N. W. 782; State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Davis v. State, 38 Md. 15; Ware v. Ware, 8 Me. 42; Com. v. Marzynski, 149 Mass. 68, 21 N. E. 228; Com. v. Wilson, 1 Gray, 338; People v. Millard, 53 Mich. 63, 18 N. W. 562; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665; Fraser v. Jennison, 42 Mich. 206, 3 N. W. 882; Tucker v. Donald, 60 Miss. 460, 45 Am. Rep. 416; Re Mason, 60 Hun, 46, 14 N. Y. Supp. 434;

And where a physician, called to give evidence as to injuries suffered by a person, testified that he refused to come to court until he had been paid, and the plaintiff's attorney sent him a check, he may be required to state how much he was paid; and refusal to require this cannot be deemed to have been harmless, where the verdict was not inconsiderable, and the witnesses had testified with much emphasis as to permanent results of the injury. Brown v. Interurban Street R. Co. 87 N. Y. Supp. 461. "Woodward v. Iowa L. Ins. Co. 104 Harris v. Panama R. Co. 3 Bosw. 7; Tenn. 49, 56 S. W. 1020.

Missouri, K. & T. R. Co. v. Criswell (Tex. Civ. App.) 78 S. W. 388.

Van Skike v. Potter, 53 Neb. 28, 73
VOL. III. MED. JUR.-38.

Foggett v. Fischer, 23 App. Div. 207, 48
N. Y. Supp. 741; Huffman v. Click, 77
N. C. 55; Melvin v. Easley, 46 N. C.
(1 Jones, L.) 387, 62 Am. Dec. 171;

the purpose of discrediting a witness who bases his testimony upon them.61 Nor can a witness be allowed to read from his own works to support his testimony.62 And a question as to whether his views are sustained by authorities is incompetent, as indirectly calling for statements from medical books. 63 Nor can he testify as to statements made in medical books;64 and the fact that an expert had read a book, and answered questions with relation to it, does not render the book itself admissible.65 A mere objection that a medical work is immaterial, however, is insufficient to raise any question on appeal;66 and the admission of such books is not reversible error, where both parties had the benefit of the evidence, and the question of admission was not raised in the trial court.67

560. The contrary rule.-The rule has been adopted by some of the cases that the opinion of an author as to the contents of his works is better evidence than the mere statement of an opinion by a witness testifying to his recollection of them from former reading, and that standard works are admissible as evidence of the author's opinion

Legg v. Drake, 1 Ohio St. 287; State v. O'Brien, 7 R. I. 336; Boehringer v. A. B. Richards Medicine Co. 9 Tex. Civ. App. 284, 29 S. W. 508; Stilling v. Thorp, 54 Wis. 528, 41 Am. Rep. 60, 11 N. W. 906; Union P. R. Co. v. Yates, 40 L. R. A. 553, 25 C. C. A. 103, 49 U. S. App. 241, 79 Fed. 584; Reg. v. Taylor, 13 Cox. C. C. 77; Darby v. Ouseley, 36 Eng. L. & Eq. 518, 1 Hurlst, & N. 12, 25 L. J. Exch. N. S. 227, 2 Jur. N. S. 497; Collier v. Simpson, 5 Car. & P. 73.

Medicine is not to be considered as an exact science, but rather as an inductive science based on data subject to change from time to time. Gallagher v. Mar. ket Street R. Co. 67 Cal. 13, 56 Am. Rep. 713, 6 Pac. 869.

People v. Goldenson, 76 Cal. 328, 19 Pac. 161; People v. Vanderhoof, 71 Mich. 158, 39 N. W. 28; Hall v. Mur. dock, 114 Mich. 233, 72 N. W. 150.

62 Mix v. Staples, 44 N. Y. S. R. 399, 17 N. Y. Supp. 775.

And a report of a single case which had occurred in the practice of a physician, proposed to be testified to by the physician in an action on a warranty of soundness of a slave, is objectionable under the rule that medical books cannot be read in evidence. Parker v. Johnson, 25 Ga. 576.

Link v. Sheldon, 45 N. Y. S. R. 165, 18 N. Y. Supp. 815; Pahl v. Troy City

R. Co. 81 App. Div. 308, 81 N. Y. Supp. 46; People v. Goldenson, 76 Cal. 328, 19 Pac. 161.

And counsel cannot be permitted to read to an expert what had been said by a physician of high authority on a question involved, in a medical journal, and then ask him whether he concurred in the views there given. State v. Coleman, 20 S. C. 441.

"Re Mason, 60 Hun, 46, 14 N. Y. Supp. 434; Boyle v. State, 57 Wis. 472, 46 Am. Rep. 41, 15 N. W. 827; Davis v. State, 38 Md. 15; Baily v. Kreutzmann, 141 Cal. 519, 75 Pac. 104.

And a statement in a medical book cannot be placed before the jury by reading therefrom to the witness, and then asking him whether there was a case reported similar to the one read. Marshall v. Brown, 50 Mich. 148, 15 N. W. 55.

And refusal to permit medical witnesses to answer questions as to whether certain medical works, naming them, were standard authorities, is not error, where no previous mention of them was made. Fox v. Peninsular White Lead & Color Works, 84 Mich. 676, 48 N. W. 203.

State v. O'Brien, 7 R. I. 336.

State v. Sexton, 10 S. D. 127, 72 N. W. 84.

"Kreuziger v. Chicago & N. W. R. Co. 73 Wis. 158, 40 N. W. 657.

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