Case v. Vearrindy

• Decision Date: 07 June 1954
• Docket Number: No. 21,21
• Citation: Case v. Vearrindy, 339 Mich. 579, 64 N.W.2d 670 (Mich. 1954)
• Parties: CASE v. VEARRINDY.
• Court: Michigan Supreme Court

Page 670

64 N.W.2d 670

339 Mich. 579

CASE v. VEARRINDY.

No. 21.

Supreme Court of Michigan.

June 7, 1954.

Herbert C. Winsor, Marshall, for appellant. Hazen J. Hatch and Lenton G. Sculthorp, Marshall, of counsel.

Dwight W. Fistler, Battle Creek, for appellee.

Before the Entire Bench.

DETHMERS, Justice.

This is a malpractice suit brought against a chiropractor. Plaintiff appeals from a directed verdict for defendant.

Testimony for plaintiff not objected to by defendant shows the following: Plaintiff's decedent went to defendant for weekly treatments from 1947 until January, 1951. In July of 1950 she was observed by her sister to be using an ice pack on her breast and massaging it with salve. On January 8, 1951, she went to a doctor of medicine, who discovered cancer in her breast which, in his opinion, should have been noticeable to her for at least a year. On January 13, 1951, she entered a hospital where she gave her medical history and it was made a part of the hospital record. Such history included her statement of previous diseases and the time of onset of the present disease and previous care and treatment thereof, all of which was essential to the record and to proper diagnosis and determination of proper treatment. On January 15, 1951, the breast was removed and found to contain a large cancer. Later she entered another hospital and made a further statement of her medical history which was incorporated into the hospital record. She died on May 5, 1951. A doctor performed an autopsy. He testified that it disclosed cancer spread throughout the body, with the liver enlarged to twice normal sixe, and that the cancer was so large and stoney hard that he thought it should have been readily noticeable to the sense of touch at least a year before her operation. He further testified that an operation at the time it was performed could only prove futile, but that one might have saved decedent's life a year earlier.

On trial plaintiff offered the two hospital records. Defendant objected to the portions thereof consisting of the history given by decedent as hearsay. The objection was sustained but a special record was taken of decedent's statements, made upon admission to the hospitals, to the effect that she had suffered much pain and been under treatment by defendant for over a year, that she had gone to the chiropractor in January, 1950, with a small lump in her breast and been advised that there was nothing bad about it and nothing should be done about it. Plaintiff assigns as error the exclusion thereof, relying on C.L.1948, § 617.53, Stat.Ann. § 27.902, which provides that records made as a memorandum of any act, transaction, occurrence or event, shall be admissible in evidence, if made in the regular course of business. Hospital records come within the purview of this statute. Gile v. Hudnutt, 279 Mich. 358, 272 N.W. 706. Portions of hospital records which do not refer to acts, transactions, occurrences or events incident to the hospital treatment, however, are hearsay and inadmissible. Valenti v. Mayer, 301 Mich. 551, 4 N.W.2d 5. In point from Sadjak v. Parker-Wolverine Co., 281 Mich. 84, 274 N.W. 719, 720, is the following:

'What decedent told the hospital authorities did not refer to any act, transaction, occurrence, or event in the hospital treatment. The portion of the record thus objected to was pure hearsay and of no evidentiary force and inadmissible. Also see Kelly v. Ford Motor Co., 280 Mich. 378, 273 N.W. 737.'

To the same effect, see In re Nickel's Estate, 321 Mich. 519, 32 N.W.2d 733, and cases therein cited. The trial court's ruling was correct.

Plaintiff's next assignment of error goes to the trial court's exclusion from evidence of testimony by the doctor of medicine concerning the exclamation made to him by decedent when first he disclosed to her the serous condition of her breast and the necessity for immediate treatment. As appears from a special record, decedent replied to the doctor's disclosure, 'No, I am not going to do anything about that, Dr. Vearrindy, (defendant) says that is getting better.' Plaintiff urges the admissibility thereof under the res gestae rule. In People v. Giovannangeli, 231 Mich. 474, 204 N.W. 97, 98, in holding a statement not admissible as part of the res gestae, we assigned as a reason therefor the following:

'The statement was not made coincident with the happening of the event to which it relates.'

In People v. Kayne, 268 Mich. 186, 255 N.W. 758, 760, we quoted with approval from Stirling v. Buckingham, 46 Conn. 461, the following:

'Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.'

Res gestae is defined in Webster's New International Dictionary (2d ed.) as 'the facts which form the environment of a litigated issue; the things or matters accompanying and incident to a transaction or event.' In defining res gestae 2 Bouvier's Law Dictionary, Rawle's Third Revision, p. 2905 says, inter alia, 'Declarations or acts, accompanying the fact in controversy and tending to illustrate or explain it, as conversations contemporaneous with the facts.' Res gestae statements are declarations growing out of the main fact--the litigated issue--and contemporaneous with it. Here the main, litigated fact or issue which plaintiff seeks to prove by the statement in question is that the defendant chiropractor had known of the condition of decedent's breast and said that it was getting better. Decedent's exclamation to the doctor of medicine was not contemporaneous with, did not grow out of, and was...