Fuller v. Lemmons , 434 P.2d 145 ( 1967 )

HODGES, Justice

(dissenting).

That the X-rays in the present case were produced for inspection and examination is not questioned. The deficiency creating the issue in dispute was the failure of a formal introduction of the X-ray photographs.

We stated in Patrick & Tillman v. Matkin, 154 Okl. 232, 7 P.2d 414, and Anderson & Prichard v. Pyle, 159 Okl. 188, 14 P.2d 938, that it was error to permit an expert to testify as to what is shown by X-ray photographs which are neither produced nor offered in evidence.

Again in Simon v. Hendricks, Okl., 330 P.2d 186, this court repeats the same pronouncement in Syllabus (1) that “it is error to permit experts to testify over objections as to what was shown by an X-ray photograph which is neither produced for inspection nor offered in evidence.”

The X-ray photographs having been produced for inspection in the present case, I would, based on these decisions, affirm the judgment of the trial court.

I do, however, agree with the majority that “the admission of medical testimony, based in whole or in part on an X-ray photograph not offered in evidence over objection,” should be error. The purpose and necessity for such a rule is adequately stated in the majority opinion. But I disagree that our prior decisions have uniformly and consistently held that the formal introduction of X-rays in evidence was an absolute prerequisite. For this reason, I cannot retroactively invoke the rule as announced by the majority opinion in the present case, but would prospectively extend its application to future cases.

I respectfully dissent.