Brown v. Saint Paul City Ry. Co., 36019

• Decision Date: 15 January 1954
• Docket Number: No. 36019,36019
• Citation: 62 N.W.2d 688,241 Minn. 15,44 A.L.R.2d 535
• Parties: , 44 A.L.R.2d 535 BROWN v. SAINT PAUL CITY RY. CO.
• Court: Minnesota Supreme Court

Page 688

62 N.W.2d 688

241 Minn. 15, 44 A.L.R.2d 535

BROWN v. SAINT PAUL CITY RY. CO.

No. 36019.

Supreme Court of Minnesota.

Jan. 15, 1954.

Rehearing Denied Feb. 4, 1954.

Syllabus by the Court.

1. Hospital records and charts, properly identified, are admissible under M.S.A. c. 600 to prove diagnosis, treatment, or medical history of a patient pertinent to the medical and surgical aspects of the case, but hearsay and self-serving statements contained therein are not admissible to prove how an injury occurred.

2. Discovery orders made prior to trial are not appealable nor may they be reviewed by certiorari.

3. Discovery orders made prior to trial ordinarily are not reviewable upon an appeal from an order denying a new trial but are reviewable only upon an appeal from a final judgment.

4. The term 'privileged' as used in Rule 34 of our Rules of Civil Procedure refers to privileges as that term is understood in the law of evidence.

5. When upon a discovery motion a party litigant claims privilege, the burden rests on him to present facts establishing the privilege unless it appears from the face of the document itself that it is privieged.

Reversed and new trial granted.

Ray G. Moonan, Frank X. Cronan, Minneapolis, for appellant.

Hunt, Palmer, Hood & Crassweller, Benjamin J. Blacik, Duluth, amici curiae.

Sullivan, Stringer, Donnelly, Sharood, and David Roberts, Saint Paul, for respondent.

KNUTSON, Justice.

Appeal from an order denying defendant's alternative motion for judgment notwithstanding a verdict for plaintiff or for a new trial.

For an understanding of the decisive questions involved in this appeal the facts may be briefly stated. On May 16, 1950, at approximately 3:45 p.m., plaintiff left the office at which she worked at 244 Dayton avenue in St. Paul and walked about three blocks to where she intended to board a westbound Selby Lake streetcar at a point where it emerges from a tunnel. It had been raining during the day but had stopped raining when she left her office. The street was somewhat wet but not particularly slippery. Plaintiff's version of what occurred and that of the conductor of the streetcar are completely at variance.

Plaintiff contends that she stood on the sidewalk and waited for the car and that, when she heard it coming through the tunnel, she stepped out into the street to board it. She testified that there was no one else waiting for the car but that she did see another woman running to catch the car from the front end; that the car stopped and opened the gates; that she put her right foot on the lower step and grasped the brass rail on the inside of the car; and that, just as she lifted her left foot, the gates of the car closed upon her. She said that there were then some men on the back of the car; that they yelled and the conductor turned around and saw her and the doors then opened; and that she fell out onto the street and received the injuries for which she sues to recover.

The conductor on the other hand testified that the streetcar had stopped to discharge passengers but that no one was waiting to board the car; that after the doors had been closed he observed plaintiff running at an angle from the sidewalk; that he then signaled the motorman to open the doors and they did reopen; and that plaintiff fell in the street midway between the sidewalk and the car, before she reached the streetcar.

It is undisputed that plaintiff was helped into a nearby grocery store by the conductor and another individual and an ambulance was called. She was taken to St. Joseph's Hospital.

No other witnesses were called by either party to testify concerning the manner in which plaintiff sustained her injuries although it is conceded that several persons were aboard the streetcar.

It is conceded by plaintiff that, if the accident had happened as related by the conductor, plaintiff could not prevail.

The question of defendant's negligence was properly submitted to the jury. We need consider only two questions on this appeal: (1) Was improper use made of plaintiff's exhibit A, consisting of a hospital chart or record? (2) Did the court err in permitting plaintiff to inspect a report of defendant's conductor prior to the trial?

Plaintiff called as her witness Dr. Joseph M. Ryan, one of her attending physicians. During his examination plaintiff offered exhibit A, a hospital record consisting of several pages. Counsel for defendant at that time stated:

'As far as I know there will be no objection to Plaintiff's Exhibit A. I would like to examine it as you go along.'

The exhibit was thereupon received by the court. In order to understand the relative contentions of the parties on this appeal it is necessary, even at the risk of unduly extending this opinion, to set forth what transpired thereafter between court and counsel respecting exhibit A and the attempted use of it.

Dr. Ryan was called on the case by telephone the evening plaintiff was brought to the hospital, but he did not actually see her in the hospital until the next morning. Part of exhibit A was prepared by Dr. Ryan or under his supervision and part of it by other doctors and by nurses. Dr. Ryan was interrogated respecting exhibit A, and the following then transpired:

'Q. Now what other history did she give you with reference to her condition, Doctor? A. Shall I read this?

'Q. Yes. If you remember it give it. If you can't read it. A. I will have to read it. The chief complaint was back pain and weakness. Then under pre-illness I stated while boarding the streetcar on the 16th of May, 1950, patient was thrown from the step when the door was closed suddenly in her face. She was thrown to the street and rolled to the curb. She was brought to this hospital after she was picked up and placed in the store.'

The portion of the exhibit from which Dr. Ryan was reading was that which appears on its fact to have been prepared on May 16, 1950, but obviously could not have been prepared until the next morning for he was not on the case until that time. Mr. Moonan thereupon stated:

'Just a moment. For the record, at this time I Move to strike the answer of the doctor upon the ground that it is hearsay having nothing to do with the doctor's treatment of the patient, hearsay as to the defendant.

'So I may make my position in the record clear, I have no objection to any history the doctor has taken with reference to her physical condition but Any statement made to the doctor in the nature of a history pertaining to how this accident occurred I object to as hearsay, and move that it be stricken.' (Italics supplied.)

Thereafter, Mr. Donnelly attempted to further lay a foundation by showing that it is necessary to have information regarding the manner in which an injury occurred in order properly to diagnose the case; the court sustained the objection; and Mr. Donnelly took an exception.

Thereafter, Dr. Donovan McCain, an orthopedic specialist, was called as a witness, and counsel for plaintiff attempted to lay a further foundation for the exhibit by showing that it was necessary to know how the patient fell in order properly to diagnose the case. The following then transpired:

'Mr. Donnelly: Now We will renew the offer of the portion of the exhibit Dr. Ryan read from with reference to his examination and the history he took that I understand as previously been stricken.' (Italics supplied.)

The court then said:

'May I ask a question first? Was this hospital record accepted with qualifications? Did you offer that hospital record in evidence?

'Mr. Donnelly: I offered it in evidence and it was admitted in evidence with the right of counsel--

'The Court: Did you have any stipulation between you?

'Mr. Moonan: No agreement between us.

'The Court:--as to reserving the right to object to hearsay or improper conclusions?

'Mr. Moonan: I reserved the right to examine it with respect to hearsay. I had no objection to the hospital chart insofar as it relates to the care and treatment of Miss Brown in the hospital, but I certainly do object to the hospital chart insofar as it attempts to by hearsay channels inject a statement made by the plaintiff at the hospital where it is attempting to use that statement for any other purpose other than treatment. It is my position, if the Court please, that the statement if as the evidence indicates was taken by the doctor for his own benefit and his own information and treatment it has served its purpose, and that any attempt to offer that in evidence here is purely hearsay. It was not taken for that purpose.

'Mr. Donnelly: If the Court please, this is a part of the history taken by the attending physician and testified to by him and taken, as both doctors have described, as a necessary element of the history and diagnosing of the patient. It is not the hospital record we are talking about now because Dr. Ryan testified by it as his record.

'The Court: Well, what I want to get straight first is when you offered Exhibit--

'Mr. Donnelly: A.

'The Court: Was 'A' the hospital record and B--

'Mr. Donnelly: That is right, Your Honor. B, C, and D are the X-rays.

'The Court: I didn't understand there was any qualification. If I had understood it I would have ruled. If there had been any objection to it I would have ruled. Now if there is any mistake about it I suppose we can settle it.

'Mr. Moonan: Well, I would like to correct any misimpressions or mistakes.

'The Court: All I said was do you want an opportunity to examine it. You didn't object to anything that was in it.

'Mr. Moonan: Well, I had not had an opportunity to examine it, if the Court please, and my purpose was not to slow up the examination of counsel in his examination of his doctor, but I didn't think it was intended to use the hospital chart for any other purpose than the medical phase of this case and in view of the present situation of the record at this time The defendant will object to Plaintiff's Exhibit A only insofar as it relates...