They may be received in evidence under certain circumstances to assist the jury in understanding the case, having been first verified as true representations of the sub: ject ; Chicago v. Vesey, 105 111. App. 191; Smith v. Territory, 11 Okl. 669, 69 Pac. 805; Dederichs v. R. Co., 14 Utah 137, 46 Pac. 656, 35 L. R. A. 802. Nothwithstanding they may have been taken some time, as a year, after the occurrence of the transaction which they represent; Chicago & E. I. R. Co. v. Crose, 113 Ill. App. 547; but not where the original can be readily exhibited, unless for use in identifying handwriting or detecting forgery; Baxter v. R. Co., 104 Wis. 307, 80 N. W. 644, they must, however, show conditions actual ly existing and are inadmissible where they merely show persons in assumed positions to illustrate the claims of parties. They have been admitted in actions for personal injury to show the condition of the injured person soon after the injury ; People's G. L. & C. Co. v. Amphlett, 93 111. App. 194; and also when taken nine years before to show emaci ation ; Rock Island v. Drost, 71 Ill. App. 613; also when taken just before and after the injury; Davis v. R. Co., 136 N. C. 115, 48 S. E. 591, 1 Ann. Cas. 214 ; also to show the hoops which were around a tank which burst and caused the injury; Ilupfer v. Dis tilling Co., 127 Wis. 306, 106 N. W. 831. They have been rejected offered to show the healthy conditions of deceased in an action on a life policy where the defense was a false representation as to health; Brown v. Ins. Co., 65 Mich. 306, 32 N. W. 610, 8 Am. St. Rep. 894; and in an action for injuries which were capable of verbal description ; Cirello v. Exp. Co., 88 N. Y. Supp. 932 ; Selleck v. Janesville, 104 Wis. 570, 80 N. W. 944, 47 L. R. A. 691, 76 Am. St. Rep. 892. In an action for negligently causing the death of a wife, her photograph is not admissible in evidence to show that she was a beautiful woman ; Smith v. R. Co., 177 N. Y. 379, 69 N. E. 729. They may also be rejected as improper and indecent where the evidence may be obtained by pri vate examination out of court and expert testimony given as the result of it ; Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142, 83 Am. St. Rep. 889.
They may be used to show the station where the decedent was killed and the con dition of the tracks; MacFeat v. R. Co., 5 Pennewill (Del.) 52, 62 Atl. 898; a jetty causing injury to a tug, taken three months after the accident ; Tracy v. R. Co., 98 Fed. 633; the place of a defect in a highway which was the cause of injury; Sterling v. Detroit,. 134 Mich. 22, 95 N. W. 986; the scene of the derailment of a railroad train, taken just after the accident; Bach v. R. Co., 112 Ia. 241, 83 N. W. 959 ; or the scene of a railroad wreck ; Maynard v. R. Co., 46 Or. 15, 78 Pac. 983, 68 L. R. A. 477. Radio graphs are receivable, like any other photo graph; De Forge v. R. Co., 178 Mass. 59, 59 N. E. 669, 86 Am. St. Rep. 464 ; Carlson v. Benton, 66 Neb. 486, 92 N. W. 600, 1 Ann. Cas. 159.
It is doubtful if they ought to be admitted to show the health, strength, or agility of a person ; Gilbert v. R. Co., 160 Mass. 403, 36 N. E.' 60.
Upon a criminal trial, photographic like nesses taken -after death, of persons whom it is material to identify, may be exhibited to witnesses acquainted with such persons in life as aids in the identification; Ruloff v. People, 45 N. Y. 215. Where a mutilated body was found, the witness was allowed to testify that the face resembled a photograph of a person alleged to De the one found, though he had not known the man before death; Udderzook v. Com., 76 Pa. 340. The healthy condition of the deceased may be proved by a colored photograph taken a short time before death ; Washington L. Ins. Co. v. Schaible, 1 W. N. C. (Pa.) 369; and in an indictment for bigamy a photograph of the first husband may be shown to a witness to the first marriage to prove his identity with the person mentioned in the marriage certificate; 4 F. & F. 103.
A photograph of scenery may be mislead ing as to distances and should be looked at with caution; Coma v. Keller, 191 Pa. 122, 43 Atl. 198; so when slight differences of height, etc., would be important; Cunning ham v. R. Co., 72 Conn. 244, 43 Atl. 1047.
See note in Dederichs v. R. Co., 14 Utah, 137, 46 Pac. 656, 35 L. R. A. 802.
A photograph made by the cathode or X-ray process will be admitted as secondary evidence; its competency depends upon the science, skill, experience, and intelligence of the person who took the picture and testi fied with regard to it. Lacking these impor tant qualifications, it should not be admitted, and it is to be weighed like other competent evidence. In an action for personal injuries it was held competent to submit to the jury an X-ray photograph taken by a surgeon, showing the overlapping bones of one of the plaintiff's legs, where it was broken at the time of the accident, and where the surgeon was familiar with the process by which the impression was secured, as well as with fractures, and the surgeon testified that the photograph accurately represented the con dition of the leg at the point of the fracture, and that by the aid of the X-rays he was en abled to see the fracture and overlapping bones as if they were uncovered to the sight ; Bruce v. Breall, 99 Tenn. 303, 41 S. W. 445.
In a criminal case in New York the pros ecution claimed that a bullet struck the victim in the jaw, and split, one piece being deflected into the jaw and the other piece into the back of his bead. The defence claimed that the piece lodged in the back of the victim's head was not a fragment but a bullet. To prove this, the defence introduc ed an X-ray photograph of the head and neck showing the lodgment of the bullet, and the testimony of the physician who took the pho tograph; 56 Alb. L. J. 309; 15 Med. Leg. J. 246.
An X-ray photograph is admissible in evi dence if properly taken ; De Forge v. R. Co., 178 Mass. 59, 59 N. E. 669, 86 Am. St. Rep. 464; to show the internal tissues of the body ; Geneva v. Burnett, 65 Neb. 464, 91 N. W. 275, 58 L. R. A. 287, 101 Am. St. Rep. 628; but they are not infallible; Miller v. Mintun, 73 Ark. 183, 83 S. W. 918; it need not be shown that it was taken by a competent person, or that the apparatus was such as to secure an accurate picture; it need only appear, by the evidence of competent witnesses, that it truly represents the object; Carlson v. Benton, 66 Neb. 486, 92 N. W. 600, 1 Ann. Cas. 159; its admission is within the discretion of the trial court; Jameson v. Weld, 93 Me. 345, 45 Atl. 299; Dolan v. Mut. R. F. Life Ass'n, 173 Mass. 197, 53 N. E. 398. The same rules apply as to ordinary photographs; Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816. See an article in 35 Am. L. Rev. 617.
It is a breach of contract and violation of confidence for a photographer to make un authorized copies of his customer's photo graph. A' private individual may enjoin the publication of his photograph, but a public character may not, in the absence of a breach of contract or violation of confidence in pro curing the likeness from which the publica tion is made. A statesman, author, artist, or inventor who seeks public recognition, may be said to have surrendered this right to the public ; Corliss v. Walker Co., 64 Fed. 280, 31 L. R. A. 283; 40 Ch. D. 345. See PRIVACY ; INJUNCTION.
One who reproduces a copyrighted photo graph cannot escape liability as an infring er by merely showing that the copy which he reproduced did not bear the notice of copyright when he purchased it, but he must also show that it bore no notice when it left the custody of the owner of the copy right; Falk v. Engraving Co., 54 Fed. 890, 4 C. C. A. 648. Violation of the right in a copyrighted photograph is subject by stat ute to a penalty. See Bolles v. Outing Co., 77 Fed. 966, 23 C. C. A. 594, 46 L. R. A. 712.
See Col./mom.