Opinion
6 Div. 721.
October 26, 1922.
Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.
T. A. Saulsbury, of Birmingham, for appellant.
The court erred in giving the charge set out in the second assignment of error, and in overruling defendant's objection to the question propounded to the witness Elkourie. 58 So. 72; 7 Ala. App. 599, 61 So. 42; 104 Ala. 471, 16 So. 538; 183 Ala. 273, 61 So. 81, Ann. Cas. 1916A, 543; 187 Ala. 490, 65 So. 530, Ann. Cas. 1916E, 565; 11 Ala. App. 644, 66 So. 942; 203 Ala. 486, 84 So. 266; 206 Ala. 1, 89 So. 729.
J. B. Aird, Jr., of Birmingham, for appellee.
The jury may disregard the entire testimony of any witness whom they believe to have sworn falsely to any material fact in the case. 4 Ala. App. 444. It was competent for the physician, in reply to a question that sufficiently hypothesized plaintiff's evidence, to give his opinion that ptomaine poison may be caused by eating impure food. 197 Ala. 34, 72 So. 354; 173 Ala. 623, 55 So. 995; 132 Ala. 471, 31 So. 573; 135 Ala. 433, 33 So. 276.
Count A of the complaint is substantially like the one held sufficient in the case of Greenwood Café v. Lovinggood, 197 Ala. 34, 72 So. 354, and the trial court did not err in overruling the demurrer thereto.
The trial court did not err in the rulings in permitting the questions complained of to be asked the witness Dr. Elkourie. He was an expert, and the plaintiff had the right to elicit his opinion, based upon an hypothesis of her evidence. He had also treated her, and was capable of advancing an opinion as to the cause and nature of her illness and the probable effect it would have upon her future physical status. Moreover, the witness was guarded and conservative in his answers as to the future effect the illness might produce. Southern Co. v. Perrine, 191 Ala. 411, 67 So. 601; B. R. L. Co. v. Fisher, 173 Ala. 627, 55 So. 995; Briggs v. B. R. L. P. Co., 194 Ala. 273, 69 So. 926; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763.
The trial court erred in giving at plaintiff's request the written charge set out in and made the basis of the second assignment of error. It pretermits the fact that the witness must have willfully or corruptly sworn falsely as to a material fact. A witness may swear falsely, innocently or inadvertently, to some material fact in the case, and the jury may have believed it due to a mere error in observation, or of a failure to recall a material detail of the matter deposed about; and though the misstatement was not corruptly or willfully false, and was not such a one as to create in the minds of the jury a belief or conviction that the testimony of the witness as to other material facts was unworthy of credit, yet under such a charge the jury could capriciously disregard material testimony in the case, of the truth of which they were fully convinced. Keef v. State, 7 Ala. App. 15, 60 So. 963; Prater v. State, 107 Ala. 26, 18 So. 238; Gillespie v. Hester, 160 Ala. 444, 49 So. 580.
Since this case must be reversed for the error in giving the above-mentioned charge, it is needless for us to pass upon the refusal of the court to grant the motion for a new trial. It is sufficient to suggest, however, by way of admonition that the questions of plaintiff's counsel, attempting to bring out the fact that defendant had indemnity insurance, were improper. It was not only done upon cross-examination of the plaintiff, but was repeated upon recall of defendant's witness, Mrs. Blue, after the trial court had previously ruled that it was not admissible.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.