The opinion
Smith, J.
(dissenting). In the case of Singer Manufacturing Co. v. Rogers, 70 Ark. 385 , 67 S. W. 75 , 68 S. W. 153 , Justice Ridoick, speaking, for an undivided court, said: "The rule established in this court is that, even where there may be some conflict in the evidence, a new trial will be granted where the verdict is so clearly and palpably against the weight of evidence as to shock the sense of justice of a reasonable person; and the evidence here, we think, calls for this application of this rule. (Citing cases).”
We are now no longer shocked. We employ the verdicts of juries as shock absorbers. Certainly no one questions the jury’s exclusive right to pass upon the truth of controverted issues of fact. But it does not follow, because juries have this right, that, they-have the right also to return any verdict which fancy, passion or prejudice may suggest. ...
The rule has been too often announced to be questioned that the verdicts of juries will not be disturbed on account of a finding of fact where there is substantial evidence to support that finding.. Cur reports are full of such cases, of which I have written a. number, ánd I do not inveigh against or question them; But it does occur to me that there is a growing inclination 'on bur part to shirk our responsibility in reviewing jury trials. We are becoming too prone to wash our hands of responsibility by saying that while a particular verdict should not have been returned and that our own sense of fairness and justice is such that we would not have done so, yet we are concluded by the verdict of the jury.
The rule is firmly fixed by the numerous decisions of this court that we may not reverse a judgment as having been rendered upon insufficient testimony where the verdict upon which the judgment was rendered is supported by substantial testimony. I reannounce my adherence to this rule, and I shall continue in the future, as in the past, to apply it in determining how my own vote shall be cast in all cases that may come before this court during my service as a member of it.
But are we without power to review this testimony? Have we no function to perform in passing upon its legal sufficiency to support a verdict which may have been, and in many cases is, returned, not by the unanimous vote of the jury, but by the vote of only three-fourths thereof? I say we have a duty, of which we are not relieved by the fact thát a verdict has been returned. On the contrary, this duty is hot imposed upon us until we are called upon to review that verdict. We then have' that duty to perform, and can only discharge it by determining, as a matter of law, whether there is a failure of proof or whether the evidence is legally sufficient to warrant the verdict.
In the case of Catlett v. St. Louis, I. M. & S. Railway Company, 57 Ark. 461 , 21 S. W. 1062 , 38 Am. St. Rep. 254 , Chief Justice Cockrell said: “The test is as follows: After drawing all the inferences most favorable to the verdict that the evidence will reasonably warrant, is it sufficient in law to sustain the verdict?” The learned Chief Justice then proceeded to say that the legal sufficiency of testimony to support a verdict is not a question of fact, nor one of law and fact, but is a question of law upon which this court must pass. That question is not only not concluded by the verdict of the jury, but cannot arise until the verdict has been returned.
We have many cases holding that we will not reverse a judgment on account of the insufficiency of the evidence to support it where there is some evidence, or substantial evidence, or other phrases of similar import. The judges writing these opinions have not always employed the same phrase, and some judges have chosen one, other judges a different phrase, but all were intended to express the same meaning, and Chief Justice Cockrill defined the meaning of all these and similar phrases in the Catlett case, supra. He there said:
“The terms, ‘some evidence,’ ‘any evidence,’ ‘any evidence whatever,’ and ‘any evidence at all,’ as used in the opinions, all mean evidence legálly sufficient to warrant a verdict. The legal sufficiency of evidence in that sense is a question of law, and the court must decide it, it matters not when or how it arises. The test that is applied by this court in determining the legal sufficiency of the evidence to sustain a verdict justified the trial court in reaching the conclusion that there, was no proof of negligence. The conclusion followed as matter of laAv that no recovery could be had, upon any view that could be taken of the facts which the evidence could be said to tend to establish. The question of negligence was therefore one of law for the court to decide. Texas & P. Ry. v. Cox, 145 U. S. 593 , 12 S. Ct. 905 , 36 L. Ed. 829 ; Grand Trunk Ry. v. Ives, 144 U. S. 408 , 12 S. Ct. 679 , 36 L. Ed. 485 .”
Shall we discharge that function here by applying the test which Judge Cookkill said should be applied in all cases, and, if we do apply it here, can this judgment be affirmed, even though a-remittitur has been ordered?
That the verdict was excessive we are all agreed. In the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Adams, 74 Ark. 326 , 85 S. W. 768 , 86 S. W. 287 , 109 Am. St. Rep. 85 , Justice Riddick- announced the rule sustained by the many cases there cited, and from which we profess never to have departed, which should be followed in cases where excessive verdicts have been returned. He said: “Where the right to recover is clear, and has been established by the verdict of a jury, and where the errors committed in the trial go only to the enhancement of the amount of the verdict, and do not affect the question of whether defendant is liable or not, then, if the verdict be excessive, or if, on account of improper evidence, or improper argument of counsel tending to enhance the amount of damages allowed, the court is not able to say from the evidence that the verdict is not excessive, and that the defendant was not prejudiced, in respect to the amount of the damages assessed, by such improper evidence or argument, the court may, in its discretion, name a sum which is clearly not excessive, and as a matter of grace to the plaintiff allow him to accept judgment for that amount, instead of a new trial. (Citing cases).”
The majority opinion reflects the fact that the right to recover in the instant case was not clear, and there were alleged improper arguments of counsel, and other assignments of error, so that if the judgment is as grossly excessive as I think the testimony shows it to be, the case is not one in which the plaintiff should be allowed, as a matter of grace, to enter a remittitur, but is one in which the judgment should be reversed and the cause remanded for a new trial.
Now, we must draw “all the inferences most favorable to the verdict, ’ ’ but this does not mean that we may now disregard, or that the jury, in performing its function, could have then disregarded, the undisputed evidence not favorable to the verdict. See St. Louis-San Francisco Ry. Co. v. Harmon, 179 Ark. 248 , 15 S. W. 2d 310 , .and the cases there cited.
Here the undisputed evidence • shows that the accident occurred May 10, and the plaintiff did not become bedfast until May 19, the day on which the suit was filed. Plaintiff himself admitted that he was able to walk prior to that day, and three disinterested ladies, near neighbors, all testified that they had seen him walking since the suit was brought. These witnesses testified positively that they had seen appellee out of his bed and moving around unassisted several times-. Two of these ladies fixed the time definitely after May 19, and, in fact, only three or four wefeks before the trial. An effort was made to prove these ladies were mistaken, although they testified positively they were not, but plaintiff’s mother, when called to rebut this testimony, did not deny that appellee had walked to the bathroom, had walked to the kitchen sink, and had walked to the dining-table to eat/
Now, it must be admitted that doctors Post and Stewart, witnesses for appellee, expressed the opinion that the prognosis was bad, and that appellee was a hopeless cripple and would never walk again. But it must also be .remembered that these doctors had never been called upon to treat appellee. They both admitted that-they were not called to examine appellee until July 16,-which was only a few days before the .trial, and that they were called then for the sole purpose of testifying as. experts, and both admitted that they were not specialists in nervous disorders. They both admitted that their opinions were largely based on what appellee had himself told them about his condition and his symptoms. This testimony would have been incompetent in many, if not ■most, jurisdictions. In the chapter on Evidence in 22 C. J., p. 269, it is said: “Where statements to a physician-are made, not for the purpose of diagnosis and treatment, but in order to enable him to testify as a witness, the declarant’s consideration■ of his interest in the .result of the litigation may lead him to-intensify his actual symptoms, or even to evolve new.ones, for which reason statements made . under such circumstances are usually rejected.”
Our case of Biddle v. Riley, 118 Ark. 206 , 176 S. W. 134 , L. R. A. 1915 F, 992, held such testimony competent. A headnote in that case reads as follows: “A medical expert may base his opinion upon a clinical history of the case under consideration, and in order to make his testimony intelligible, he may testify to the observations that he made, and also as to what his patient said to him. in describing his bodily condition and the character and manifestations of his sickness, pains, etc.”- In the same paragraph of the opinion in which that statement appears it is also said: “The reason for this rule is that the physician must oftentimes of necessity take into consideration such statements in reaching a.conclusion as to the physical condition of the patient, and the nature and extent of his malady or injury; and hence the rule being founded on such necessity,, it has been declared that- it might be applied with caution, and not extended beyond .the reason of necessity upon which, it rests. It has been • declared, however, that the mere statements made by a person as to his snffering-s, pain, etc., which statement was made for the sole purpose of furnishing the expert with information on which to base an opinion, is not admissible, and that the witness, in testifying to what he has heard and observed, is confined to exclamations, shrinkings (shrieking) and other expressions-which appear instinctive, intuitive and spontaneous. 5 Encyclopedia of Evidence, p. 608.”
In the note to the text from 22 C. J., above quoted, our case of St. Louis, etc., R. Co. v. Bostic, 121 Ark. 295 , 180 S. W. 988 , 181 S. W. 135 , is cited, in which case'a headnote reads as follows: “In an action for damages due to personal injuries,- a statement by a physician that plaintiff told him that he was spitting blood some months after the injury, is inadmissible, when the.- physician had no first hand information that that was the case.”
It is an undisputed fact that doctors Johnson and Rose, the physicians who had treated appellee and thus had the opportunity to acquire first hand' information, were not called as witnesses. Appellee might have called them had he elected to waive the privilege conferred by § 5159, Pope’s digest. But the defendant could not- have required these doctors to testify. The provisions of act 251 of the Acts of 1937, p. 909, do not apply. This act amends § 4149, Crawford &. Moses ■ Digest, which, as thus amended, appears, as § 5159 of Pope’s Digest. This act provides that if a patient were attended by two or more physicians, and calls one of them to testify as to his ailment, he shall be deemed to have waived the privilege attaching to the other physician. Here appellee did not call either doctor Johnson or doctor Rose, and appellant could not do so.
Much stress is put upon the fact that appellee wás struck on the 'head, and had his jaw broken, but both doctors Post and Stewart admitted that'they found rió broken bones or fracture of any kind, and that all of appellee’s reflexes were-normal; that/there were* no functional or organic diseases, and appellee appeared to be well nourished. Indeed, the testimony to- this effect was so overwhelming and undisputed that, after several doctors-, ■ called by appellant, had so testified, counsel for appellee said: “We concede that the X-ray pictures taken show no fractures/'.-'-It is also undisputed that there were no fractures or bone injuries, and all the doctors agreed there was no- disalignment of the vertebrae, that the gash on the back of the head was a one-stitch gash and not apparently serious, and. appellee’s physicians admit that when their examination was made in July no evidence remained of the.abrasion on the back and shoulders, that the lip and head had healed, and the laboratory tests show all functional organs to be sound and normal, a.i\d that the blood pressure was also normal.
The general character of the testimony of appellee is-reflected'in'the examination of ■ appellee’s witness, Dr. PctetfAs follows. After expressing-the opinion that .ap-pellee had been totally and permanently disabled to perform-.any manual labor, he made answers as follows: “Q. You say all reflexes were normal,*? A. Yes, sir. Q. Doctor, you didn’t take any X-rays?. A. No, sir. Q. You didn’t make any- other tests other than these you have described? A. Yes, sir. Q. All these tests you made .called more or less for the honest co-operation on the part of the patient? A. Well, no, sir, they would act independently. . Q. You say that reflexes would act independently and you found everything normal? A. Yes, sir. Q. When you called .these things they required the cooperation on his .part where you took the watch and found.-his defect.jn hearing*? A, Yes, sir. Q. Tell the jury what symptoms that, you discovered that indicated to you that he had traumatic neurosis. A..' His inability to stand or walk. Q. And how did you determine that he could not stand or walk? A. We tried him; also from the history of the .case. Q. Did he and his family give you this ? A. Yes, sir. Q. Then you determined that by asking him if he could st;and or walk, and he told you no? A. Yes, sir.” ,. . ..
■ On his cross-examination Dr. Post further testified as follows: “Q. Inyopr examination, you found nothing functionally- wrong*:.with1 his heart? A. No, sir. Q. The blood pressure? A. Normal. Q. Kidneys? A. Acted all right. Q. Stomach? A. All right. Q. The intestines were all right? A. Yes, sir. Q. The bowels? A. Acted all right. Q. The spine, in so far as yon knew? A. Align-, ment good, as far as I conld make ont. Q. You did examine his back, did you? A. Yes,' sir. Q. You felt of it? A; Yes, sir. Q. The alignment was good? A. Yes, sir.-. Q. You couldn’t observe anything, from your own observation that indicated there was anything wrong with, the-spine? A. All right, as far as I could see.”.
Appellee’s other witness, Dr. Stewart, on his Cross-examination gave substantially the' same answers to these questions, and in addition mádé answers as follows: “Q. Ill all Of these type of tests that you made the reflexes were normal? A. The reflexOs were normal. Q.'When'you go to hold a watch up tó' his' ear, in making' that tést,: he had to tell you about that?' A. Yes, sir. He had to' co-operate with you fully and honestly on that kind of test, or the test was no good and the test told you' nothing? A. That’s right. Q. Did you ask the boy to stand up? A. We asked him if he could and he told us no;' we tried to set him up and he couldn’t do it. Q. He told you that? A. He complained so- bitterly, we didn’t force him. Q. Why did you ask him to stand up?' ;A. To be sure and see if he could, we wanted to know if he could.”
All the doctors called by appellant. who had also examined appellee said they found no reason why appel-lee could not walk if he wished to do so. Only one of the doctors called by either side qualified as,a nerve and brain expert, all others were general practitioners. This nerve and brain specialist expressed the definite and positive opinion that appellee would again walk after the case had been finally disposed of. His- testimony may be summarized as follows: “I made a neurology examination of the man and by that „ examination I examined this man’s nervous system all over, and I found he had all the reflexes; he wasn’t paralyzed in any part of his body; not any nerve coming off the brain was paralyzed, no paralysis- at all, mentality clear, and from that examination I- don’t think he had any- mental condition; he was very well nourished ahd I couldn’t find any injury; there was no disease of this boy’s nervous system, or brain, or spine, or any nerve coming off of them.” He enumerated the symptoms which Avould-suggest a neurosis, and appellee had none of them. This specialist testified that he. found appellee very unresponsive during his examination, that members of appellee’s family were-present during the examination, and that he detected appellee’s sister coaching appellee during the examination, a fact which the sister did not deny.
After drawing all the inferences most favorable to the verdict,, can it be said the opinions of doctors Post and Stewart, who admit that they examined appellee for the purpose of testifying in his...behalf, and who admit' also that, their opinions .are based largely on the subjective symptoms of which appellee complained, whi eh were corroborated only by a couple of relatively insignificant scars, will reasonably warrant the verdict returned in this case and is sufficient to sustain the verdict? This, as Judge Cockrell said, is a question of law for this court to decide. I .submit that the testimony is not sufficient, and as the excessiveness of the verdict is not the. only error complained of, the plaintiff should- not be allowed, as a matter of grace,. to. have the judgment affirmed for $30,000. The very passion. and prejudice which .induced the excessive verdict may have been responsible also for the finding by the jury that there was liability for the injury, and the judgment should, in my opinion, be reversed.
I am authorized fo say that'Chief Justice Smith and Justice McHaNey concúr in the'views here 'expressed. ''