Allen v. St. Louis Public Service Co.

• Citation: 285 S.W.2d 663,55 A.L.R.2d 1022,365 Mo. 677
• Decision Date: 09 January 1956
• Docket Number: No. 44195,No. 2,44195,2
• Parties: , 55 A.L.R.2d 1022 Marvelle ALLEN, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Respondent
• Court: United States State Supreme Court of Missouri

Page 663

285 S.W.2d 663

365 Mo. 677, 55 A.L.R.2d 1022

Marvelle ALLEN, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Respondent.

No. 44195.

Supreme Court of Missouri, Division No. 2.

Jan 9, 1956.

Morris & Morley and John J. Morris, St. Louis, for appellant.

Lloyd E. Boas, Harry Bell, St. Louis, for respondent.

EAGER, Presiding Judge.

This is an action for damages for personal injuries. Plaintiff, a passenger on one of defendant's buses in St. Louis, Missouri, claimed that she was caused to fall by a sudden and violent jerk of the bus as it approached her stop. This occurred on January 7, 1952. The case was submitted to the jury upon the res ipsa loquitur theory, there was a verdict and judgment for the defendant and plaintiff has appealed. Plaintiff claimed injuries to her left shoulder, neck and back. She had been examined and treated by various physicians and in two or three hospitals, and testimony from three of her physicians was produced at the trial. Because of the nature of the present assignments of error, it will not be necessary to review the controverted facts on the question of liability or the details of the claimed injuries. Plaintiff relies here on two allegations of error, both of which concern the admission of allegedly incompetent and prejudicial evidence. Further incidental references to the evidence will be made hereinafter.

The first and principal complaint is that the court erred in permitting defendant's counsel to introduce and read to the jury the back of Exhibit 6E, being a part of the records of the St. Louis County Hospital, where plaintiff was a patient in January, 1953, and an 'out-patient' at the clinic in February and March, 1953. The exhibit in question was dated March 12, 1953, and was signed by a Doctor Ruby. Because of the nature of this assignment we quote the exhibit verbatim, except for signature and date: 'This patient is malingering. She says she has pain in her neck and legs and left shoulder following accident which occurred one year and three months ago. No fracture. No dislocation, or any other injury would make it possible for her to wear a neck brace this long. Patient says that without it she has pain yet. This patient is doing herself much harm by not using her neck. She will develop some atrophy and fibrosis. If she has all the pain in her left arm she claims to have, by now she would have atrophy in her left arm and forearm from disuse. Since she states she can't move the left upper extremity except in a very limited range of motion, refer this patient to physiotherapy to see if they can get her to realize the importance of exercising, perhaps helping her. X-rays show no evidence of trauma, old or new, only that she has some degenerative changes consistent with her age.'

The hospital records were produced under subpoena by Miss Bernice Brown, who had been the medical record librarian at that hospital for ten years. She was examined and cross-examined at great length concerning these records, first out of the presence of the jury and by counsel for both parties. She testified: that the records were the hospital records of plaintiff; that they were kept in the witness' custody, and that they were made and kept in the regular and ordinary course of the hospital's business; that the entries therein were made at or near the times the respective persons involved saw the patient; that the doctors write the history, findings, progress notes and all the diagnoses; that the nurses make certain incidental entries, including the nurses' notes; that she knew all the doctors whose names were shown; that the records come to her, complete, upon the discharge of the patient; that she could not know personally that every entry was made immediately after the event, but that she knows the procedure; that she visits the various departments of the hospital; that if a patient is seen in the clinic as an out-patient, a record is made by the doctor at the time, and in the regular course of business, and that entry becomes a part of her records; that Dr. Ruby was a resident physician at the hospital in March, 1953, but had since left and gone west; that she was familiar with his handwriting, which she identified in the body of Exhibit 6E. Many of the clinic records read in evidence concerned examinations and treatment of plaintiff prior to the accident. Plaintiff's counsel objected to all the records generally as not properly qualified under the Uniform Business Records Act, but the trial court held that they were admissible and announced that it would consider specific objections to specific parts. The present assignment concerns only the matter quoted above.

The objections with which we are now concerned are: that the matter was hearsay; that plaintiff was denied the right of cross-examination thereon; that it consisted of conclusions; that it was highly prejudicial and unfair, and that it invaded the province of the jury. These objections were made to the quoted matter as a whole.

We first consider the objections of hearsay and denial of cross-examination, which are, in effect, the same. Hospital records have long been held admissible generally in Missouri (in the absence of privilege) as official records kept pursuant to statute. Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 214, 172 S.W.2d 826, 833; Kirkpatrick v. Wells, 319 Mo. 1040, 6 S.W.2d 591, 593; Galli v. Wells, 209 Mo.App. 460, 239 S.W. 894; Sullivan v. Kansas City Public Service Co., Mo.App., 231 S.W.2d 822, 826. Thus even prior to the enactment of the Uniform Business Records Act, Secs. 490.660-490.690, RSMo 1949, V.A.M.S., L.1949, p. 275, the objections of hearsay and deprivation of cross-examination were held to be generally ineffective. Since that enactment it has been held distinctly in Missouri that hospital records come within the purview of the Act and that when properly qualified thereunder, they are admissible generally. Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663; Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577. And see York v. Daniels, 241 Mo.App. 809, 259 S.W.2d 109, involving the records of an autopsy, which, of course, is in point as a clear analogy. A brief and instructive review of the Missouri cases appears in the October, 1955 issue of the St. Louis Bar Journal at page 39. Objections to such records as hearsay and as depriving a party of the right of cross-examination are, therefore, not effective if the records have been properly qualified under the Uniform Business Records Act (hereinafter referred to as 'the Act.') ¹ For a full citation of cases on the subject from other jurisdictions see those cited in the 1955 Pocket Supplement of Wigmore on Evidence, 3d Ed., Vol. 6, Sec. 1707. The Missouri view appears to be definitely in line with the great weight of authority. There must, of course, be a preliminary showing of the identity of the record, the mode and time (or times) of its preparation, and that it was made in the regular course of business; if this, and the 'sources of information,' are sufficient 'in the opinion of the court,' then the record, generally, is admissible. The requirements of this preliminary showing have been discussed by the Missouri Courts, and some hospital records have been rejected, in whole or in part, as insufficiently qualified. Conser v. Atchison, T. & S. F. Ry. Co., Mo., 266 S.W.2d 587; Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577; State v. McCormack, Mo., 263 S.W.2d 344. We have outlined in some detail the testimony of the Record Librarian concerning the hospital records produced here. We have determined that this qualification was sufficient, and we so hold. To require more would, as a practical matter, seem to enforce the attendance and testimony of the various persons who co-operated in making the record, which is the very thing the Act seeks to obviate. 6 Wigmore on Evidence, 3d Ed., Sec. 1707; and a reasonable liberality seems to be imposed by the very wording of Sec. 490.690. To construe the act too strictly would be to repeal it. The qualification of the records here was applied not merely to them as a whole, but to various parts thereof including specifically Exhiblt 6E.

We do not hold, however, that the proper qualification of hospital records under the Act necessarily makes all parts of the record automatically admissible. If specific and legally proper objections are made to parts of the record, on grounds other than hearsay generally, such parts may be properly excluded. Kraus v. Kansas City Public Service Co., Mo., 269 S.W.2d 743; Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577. And it has been said that the Act does not make relevant that which would not otherwise be relevant. Hancock v. Crouch, Mo.App., 267 S.W.2d 36; and see Long v. United States, 4 Cir., 59 F.2d 602; Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692 (by analogy only). In other words, all that the Act does, essentially, is to eliminate the hearsay objection.

We do not propose to point out here all the matters which are or are not admissible when made part of a properly authenticated and qualified hospital record. Of the Missouri cases the interested may read: Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663; Kraus v. Kansas City Public Service Co., Mo., 269 S.W.2d 743; Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577; York v. Daniels, 241 Mo.App. 809, 259 S.W.2d 109 (private autopsy records, but analogous). The case of New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 303, is strongly relied on by plaintiff's counsel. In that case certain psychiatric diagnoses and history were rejected, chiefly as being opinions and conjectural, and not an 'automatic reflection of observations.' There was a strong dissent. We are not bound by that decision nor is our evidence the same; we may say,...