69

68 Under this rule medi

upon questions of medical skill or practice.68 cal books may be read to the jury in connection with a proper explanation of the terms used, and skilled physicians and surgeons are competent to testify as to who are standard authors, and as to what treatment they prescribe.70 And a statutory provision that historical works, books of science or art, etc., when made by indifferent persons, are presumptive evidence of facts of general notoriety and interest, does not make inadmissible any such evidence which was before admissible." But such books have not the weight of legal authorities, except so far as the views expressed in them on the subject in question have been recognized and sustained by judicial ruling.72 The United States circuit court of appeals however, has refused to follow the state courts of Iowa in the adoption of the above rule, holding that a statute of that state, making books of science or art presumptive evidence of facts of general notoriety or interest, does not include medical works so as to make them evidence of the opinions or theories therein expressed.78

561. Opinions founded on books.-Though medical and scientific books are not deemed admissible in evidence, opinions of medical experts are not rendered inadmissible by the fact that they were in some degree founded on books as a part of their general knowledge.74

"Bowman v. Woods, 1 G. Greene, 441; Merkle v. State, 37 Ala. 139; Bales v. State, 63 Ala. 30; Stouden meier v. Williamson, 29 Ala. 558; State v. West, Houst. Crim. Rep. (Del.) 371. Under this rule evidence of a medical expert as to whether delusion or transitory mania is a condition recognized by medical authorities, offered for the purpose of proving that the theory in question is taught by the authorities, is not admissible, since the works themselves would be the only competent evidence of what they teach; though it might be admissible on cross-examination to test the accuracy of his knowledge. State v. Winter, 72 Iowa, 627, 34 N. W. 475.

"Merkle v. State, 37 Ala. 139; Bales v. State, 63 Ala. 30; Stoudenmeier v. Williamson, 29 Ala. 558.

But a jury to whom passages from a scientific work had been read as evidence cannot be permitted to take the book with them into the jury room when they retire for deliberation, where the portions read were not marked. State v. Gillick, 10 Iowa, 98.

Brodhead v. Wiltse, 35 Iowa, 429. And whether there is a difference be

tween medical or surgical authorities as to the mode of treatment or proper course to be pursued in a designated case may be shown by the evidence of competent physicians and surgeons. Ibid.

"Ibid.

"State v. West, Houst. Crim. Rep. (Del.) 371.

But the admission in evidence in an action for malpractice, of a medical book, objected to because an old edition, and because the practice had since changed, is not prejudicial error, where the evidence clearly shows what the modern practice is. Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511.

18 Union P. R. Co. v. Yates, 25 C. C. A. 103, 40 L. R. A. 553, 49 U. S. App. 241, 79 Fed. 584.

"Melvin v. Easley, 46 N. C. (1 Jones, L.) 387, 62 Am. Dec. 171; Carter v. State, 2 Ind. 617; State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Finnegan v. Fall River Gas Works Co. 159 Mass. 311, 34 N. E. 523; Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221; Collier v. Simpson, 5 Car. & P. 74.

It is not improper for a medical witness to give the source of his opinion,

Medical witnesses are not confined to opinions derived from their own observation and experience,75 and may be asked for their best opinions according to the best authority;76 and they may refer to cases on record, without reading them, to support their opinions." But the judgment or opinion, in order to be admissible, must be that of the expert himself, and not merely that of the author repeated by him.78 On this question see also discussion as to qualifications of experts. 79

562. Use of books in examining witnesses.-Counsel may use the statements in medical books or medical journals of physicians of high standing for the purpose of framing questions to be asked medical experts as to their own opinions.80 And a medical witness may refresh his recollection by reference to standard authorities prepared by persons of knowledge and ability.81 But the opinion which he gives must be his own, independent of that expressed in the work. 82 And books referred to by a medical expert cannot be used to support his testimony.83 Nor can such books be admitted in evidence on cross-examination, where their introduction is not for the purpose of direct contradiction of something asserted by the witness, but sim

and to state that all writers and authorities on the subject, so far as he knows, support his position. State v. Baldwin, 36 Kan. 1, 12 Pac. 318.

"State v. Terrell, 12 Rich. L. 321; Marshall v. Brown, 50 Mich. 148, 15 N. W. 55; Taylor v. Grand Trunk R. Co. 48 N. H. 304, 2 Am. Rep. 229; State v. Wood, 53 N. H. 484.

Pierson v. Hoag, 47 Barb. 243. "Healy v. Visalia & T. R. Co. 101 Cal. 585, 36 Pac. 125.

But an expert witness testifying as such that he agrees with the author of a work upon medical jurisprudence cannot be handed the book, and asked to read a certain paragraph pointed out therein. Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401.

18 State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221.

In Kath v. Wisconsin C. R. Co. (Wis.) 99 N. W. 217, and Soquet v. State, 72 Wis. 659, 40 N. W. 391, it was held that an expert medical witness cannot state an opinion based upon what he learns entirely from medical works, unsupported by practical experience of his own; but that the rule goes no further.

Supra, § 545.

State v. Coleman, 20 S. C. 441;

Tompkins v. West, 56 Conn. 478, 16
Atl. 237; Connecticut Mut. L. Ins. Co.
v. Ellis, 89 Ill. 516. And see Hess v.
Lowrey, 122 Ind. 233, 7 L. R. A. 90, 17
Am. St. Rep. 355, 23 N. E. 156.

It is not improper to allow counsel to incorporate quotations from medical works as part of his questions addressed to experts to test their technical knowledge. Williams v. Nally, 20 Ky. L. Rep. 244, 45 S. W. 874.

State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Huffman v. Click, 77 N. C. 55; Union P. R. Co. v. Yates, 40 L. R. A. 553, 25 C. C. A. 103, 49 U. S. App. 241, 79 Fed. 584.

And an engraving however made may be used by a medical witness to illustrate his meaning; but when offered as a part of a medical book, or as the work of some distinguished medical man, it should be excluded, since that would give it undue importance to the jury. Ordway v. Haynes, 50 N. H. 159.

62 State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Huffman v. Click, 77 N. C. 55.

83 Gallagher v. Market Street R. Co. 67 Cal. 13, 56 Am. Rep. 713, 6 Pac. 869: State v. Winter, 72 Iowa, 627. 34 N. W. 475; Davis v. State, 38 Md. 15; For V. Peninsular White Lead & Color Works, 84 Mich. 676, 48 N. W. 203.

ply to prove a contrary theory.84 And counsel cannot, on cross-examination, call the attention of expert witnesses, testifying to their own opinions, to certain medical works, and read therefrom to the jury to contradict them.85

Evidence as to what was said in a medical book, however, may be contradicted by producing the book;86 and reference to books of approved authority is proper on cross-examination, in order to test the learning of a witness.87 And medical men may be asked on crossexamination whether they have read particular medical books;88 and whether they agree with the authors of such books;89 and whether the books do not contain statements contrary to the views expressed by the

witnesses.90

extracts from medical works claimed to have been read should be strictly limited to the one purpose of testing the competency of the witness as an expert and the value of his opinion.91 And great care should be taken by the court to confine the questions within reasonable limits, and to see that quotations read are so fairly selected as to present the author's views on the subject under examination.92

563. Use of books in argument.-Three different theories of law exist as to the proper use to be made of medical books in argument. When statements of a medical book are a part of the evidence, the right of counsel to read them to the jury in argument is, of course, absolute.93 But where this is not the case, the prevailing rule would seem to be that medical and scientific works cannot be read to the jury by counsel in argument though they are standard works of established authority;9 and failure to restrain counsel, who, in his address, reads and comments on such a book as evidence in the cause, is not a waiver of error.95 But it will be presumed on appeal that medical works read in evidence against objection were read for some legitimate purpose, where the bill of exceptions does not purport to contain all the evidence.96 By another class of cases, however, the rule is laid down that extracts from medical works which have been accepted by the profession as authority may, when pertinent, be read to the jury by counsel as a part of the argument,97 but this is per

"Fisher v. Southern P. R. Co. 89 Cal. 399, 26 Pac. 894.

Connecticut Mut. L. Ins. Co. v. Ellis, 89 Ill. 516.

Refusal to allow counsel to read in surrebuttal certain portions of a med ical treatise to discredit and contradict an expert who has testified for the other side is not error, where it does not appear that the expert predicated his opinion upon the theory of that treatise. People v. Goldenson, 76 Cal. 328, 19 Pac. 161.

Scott v. People, 141 Ill. 195, 30 N. E. 329.

"Ashworth v. Kittridge, 12 Cush. 193, 59 Am. Dec. 178; Washburn v. Cuddihy, 8 Gray, 430; Com. v. Brown, 121 Mass. 69; Com. v. Sturtivant, 117 Mass. 130, 19 Am. Rep. 401; People v. Wheeler, 60 Cal. 581, 44 Am. Rep. 70; Quattlebaum v. State, 119 Ga. 433, 46 S. E. 677; Re Mason, 60 Hun, 46, 14 N. Y. Supp. 434; Huffman v. Click, 77 N. C. 55: Burt v. State, 38 Tex. Crim. Rep. 397, 39 L. R. A. 305, 40 S. W. 1000, 43 S. W. 344; Queen v. Crouch, 1 Cox, C. C. 94.

The reason for the rule that medical

books cannot be read in argument is that they are not evidence; and that the statements therein are hearsay, and want the sanction of an oath. Ashworth v. Kittridge, 12 Cush. 193, 59 Am. Dec. 178; People v. Wheeler, 60 Cal. 581, 44 Am. Rep. 70.

"Melvin v. Easley, 46 N. C. (1 Jones L.) 387, 62 Am. Dec. 171.

Ripon v. Bittel, 30 Wis. 614. And a verdict in a prosecution for rape is not vitiated by the fact that certain books on the subject of rape had been inadvertently left on the table, and were consulted by the jury during their deliberations, in the absence of evidence as to their contents. or that they influenced the jury. People v. Draper, 1 N. Y. Crim. Rep. 139.

"State v. Hoyt, 46 Conn. 320; Legg v. Drake, 1 Ohio St. 286; State v. Coleman, 20 S. C. 441.

But refusal to permit counsel to read extracts from a medical work as part of his address to the jury is not reversible error, where it does not appear that such extracts had any relevancy to the cause on trial. Legg v. Drake, 1 Ohio St. 286.

mitted to be done only by way of illustration.98 And where counsel reads medical books to the jury in his argument, the court should instruct the jury that such books are not evidence, but simply theories of medical men.99 There is still another class of cases in which the practice of permitting counsel while addressing the jury to read extracts from medical or scientific works as a part of his argument is regarded as resting entirely within the sound discretion of the trial judge,1 100 which discretion will not be revised on appeal, unless it is made plainly to appear that it has been abused.101

III. PHYSICAL EXHIBITION, EXAMINATION, AND INSPECTION.

564. Competency generally.-The exhibition of the injured or diseased member or portion of the human body may be permitted in a proper case for the purpose of showing its actual condition and the probable causes of such condition, or of enabling a medical witness to make his description and explanation of such condition more intelligible; though a jury should not be permitted to determine for