On Motion For Rehearing
Appellants have presented an able motion for rehearing in which they particularly urge that we erred in overruling their third, fourth and fifth points and in holding that the trial court correctly overruled their objections to the introduction of the X-ray photographs and photostatic copy of the chart or history of Hector H. Hickman in connection with the oral deposition of Dr. J.H. Maxfield and the testimony of other medical witnesses. The basis of our holding was that the manner in which such exhibits were brought into court was a substantial compliance with the agreement of the attorneys that-the deposition was to be “informally returned” when considered in connection with the testimony of Dr. Max-field and statements by the attorneys as shown in his deposition.
It is contended in the motion that the conclusion reached by this court concerning the agreement differs from the terms of the agreement as construed by the court in- that the agreement, as found by the court, contemplated that the deposition be certified to by the notary taking sáme, returned by him as a whole to the clerk of the district court of Brown County, Texas. The agreement made by the attorneys at the time of taking the deposition did provide that the “deposition be taken, transcribed, certified to” by the notary who took same and “returned informally into the District Court of Brown County.” The deposition of the witness Dr. Maxfield was certified to by the notary and returned by him to the District Cleric except that the exhibits in question were not delivered to the notary when the deposition was taken, did not accompany the deposition when filed with the clerk and were not separately certified to. These exhibits were first de*688livered to the notary, who was also the court reporter, when they were brought into court by appellee’s attorney, Mr. Calla-way, and introduced in evidence at the trial. It is to be conceded that this procedure did not comply with the original agreement of the attorneys as above summarized.
It is our opinion, however, that the question and answer testimony of Dr. Max-field, together with comments and statements of the attorneys in connection therewith, as heretofore set out, modified the original agreement. The doctor indicated a desire to retain the original of the chart or history in his possession rather than to deliver it to the notary and to make a copy thereof for use in connection with the deposition in court, and to retain the X-ray pictures until he could make miniature copies for his office records. We believe that the testimony of the doctor and statements of attorneys, as quoted in our original opinion, show that such attorneys were agreeable to the doctor’s suggestion. There was no indication as to the exact manner or time for the copy of the chart and original X-ray pictures to be delivered to the notary as exhibits to and as a part of such deposition but we believe it is clear that it was agreeable to the attorneys for such exhibits to be delivered to the notary at a later date. Since it was agreed that the exhibits were not to be taken into possession by the notary (who was also the court reporter) at the time of taking the deposition and kept at all times thereafter with the deposition as a whole, but were to be delivered to him at a later time, the specific time and manner of which was not provided, and since the original agreement concerning the deposition was that it be “returned informally” we cannot see that the manner in which these exhibits „were brought into court does appreciable violence to the agreement unless there was some question as to the authenticity of the exhibits.' No contention is made that the X-ray pictures were not the same pictures identified and referred to in Dr. Maxfield’s deposition nor is it urged that the photostatic copy of the chart introduced in evidence is not a copy of the original chart identified by Dr. Maxfield. Contestant’s attorney, Mr. Callaway, testified that Dr. Maxfield delivered such exhibits to him a few days after the deposition was taken and that he brought them to his office in Brown-wood and there had them in his possession until they were offered in connection with Dr. Maxfield’s deposition. There is no question or suspicion raised concerning the authenticity of the exhibits and in the absence of such, no injury could have been suffered by appellants. We are also of the opinion that in the absence of any question concerning the authenticity of the exhibits there is no violation of the essence or spirit of the agreement between the attorneys as shown by the record.
The motion for rehearing is overruled.