D'Amato v. Johnston

• Decision Date: 09 June 1953
• Citation: 97 A.2d 893,38 A.L.R.2d 772,140 Conn. 54
• Parties: , 38 A.L.R.2d 772 D'AMATO et al. v. JOHNSTON et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 893

97 A.2d 893

140 Conn. 54, 38 A.L.R.2d 772

D'AMATO et al. v. JOHNSTON et al.

Supreme Court of Errors of Connecticut.

June 9, 1953.

Charles A. Harrison, New Haven, with whom, on the brief, was Milton G. Harrison, New Haven, for the appellants (plaintiffs).

Martin E. Gormley, New Haven, for the appellees (defendants).

Before BROWN, C. J., and BALDWIN, INGLIS, O'SULLIVAN and CORNELL, JJ.

INGLIS, Associate Justice.

In this action Alfred D'Amato sought to recover for personal injuries sustained in a collision between an automobile driven by him and a trailer truck owned by the defendant J. A. Garvey Transportation, Inc., and operated by the defendant Johnston. The collision occurred on route 1 in the town of Orange on March 21, 1950. The other plaintiff, Rachel Riccio, was the owner of the car driven by D'Amato and she sued for property damage to it. The answer denied the allegations of negligence and alleged contributory negligence, one specification of which was that D'Amato was driving while under the influence of intoxicating liquor. The jury returned a verdict for the defendants and from the judgment rendered thereon this appeal has been taken. The principal question is whether the court erred in admitting in evidence certain portions of D'Amato's hospital record which stated that he was intoxicated.

D'Amato was injured by the collision. He was admitted to the Grace-New Haven Community Hospital at 12:20 a. m. on March 22, about thirty-five minutes after the accident. The hospital record pertaining to D'Amato's stay in the hospital was offered in evidence by the defendants through the custodian, who testified that it was a record kept in the regular course of business at the hospital and that it was the regular course of the hospital business to make a record of the event at the time or within a reasonable time thereafter. The plaintiffs objected to the admission of the following excerpts, contained in the admission note made by an intern: 'Pt. * * * intoxicated [and] denies accident. * * * Pt. does not remember details of accident [and] was probably unconscious for? length of time [after] the accident. * * * In E[mergency] R[oom] pt. was garrulous; kept asking for his wife. * * *' Shortly after his admission, D'Amato was taken to the x-ray room. The roentgenographic report included the statement: 'Pt. denies accident and is intoxicated.' An operation to reduce fractures was performed at 2:15 a. m. A note thereon states: 'Pt. withstood procedure well [and] returned to [room] in good condition. Intoxicated [with] ethanolic odor to breath throughout.'

The defendants claimed that these entries in the hospital record were admissible under § 7903 of the General Statutes, relating to the admissibility of business entries, which is set forth in the footnote. ¹ The plaintiffs objected to the admission of the various statements concerning D'Amato's condition of intoxication because (1) the statute was not intended to apply to such entries and (2) the statements were hearsay and those persons who made them were not present in court to be subject to cross-examination. The court overruled the objection and the plaintiffs excepted.

Section 7903 is substantially identical with statutes adopted in a number of other jurisdictions, all of which stemmed from a report by a committee of the Commonwealth Fund of New York made in 1927. Another group of states have adopted the Uniform Act on Business Records, which was recommended in 1936 by the National Conference of Commissioners on Uniform State Laws and is designed to accomplish the same end. 5 Wigmore, Evidence (3d Ed.) p. 362. The cases are in considerable confusion as to the applicability of these statutes to various kinds of business entries, including hospital records. 6 Wigmore, op. cit., § 1707.

Connecticut, in line with most, if not all, jurisdictions which have similar statutes, is definitely committed to the proposition that hospital records are business entries under the statute. We so held in Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 99, 3 A.2d 224. It is there recognized, however, that the application of the statute is confined to certain particular kinds of entries commonly found in such records. Courts in other jurisdictions have held various items appearing in hospital records inadmissible on the ground that they were not within the statute. In so far as the entries excluded are somewhat akin to those in question in the present case, the entries and the reasons for exclusion fall into three categories.

One group of cases holds that an entry which expresses an opinion, and particularly that of an expert, is not admissible, at least until the qualifications of the entrant to express the opinion and the facts upon which his conclusions are based have appeared in evidence. Lane v. Samuels, 350 Pa. 446, 450, 39 A.2d 626; Stone v. Goodman, 241 App.Div. 290, 297, 271 N.Y.S. 500. On this basis, in the Lane case, supra, [350 Pa. 446, 39 A.2d 628] the court excluded a portion of a hospital record which read: "Impressions * * * Acute and chronic alcoholic intoxication." This, however, is not the law in this state. The making of a diagnosis certainly involves the formulation of an expert opinion, and yet we have said that the entry in a hospital record setting forth the diagnosis of a patient's illness is an entry which is admissible. Borucki v. MacKenzie Bros. Co., supra, 125 Conn. at page 102, 3 A.2d 224. Moreover, under our law the statement that a person is intoxicated is not so much the expression of an opinion as it is the statement of a conclusion drawn from observation. 'The condition of intoxication and its common accompaniments are a matter of general knowledge.' State v. Jones, 124 Conn. 664, 667, 2 A.2d 374, 375. The entries in the hospital record in the present case to the effect that D'Amato was intoxicated were not inadmissible on the ground that they were records of the entrant's opinion.

The second category of entries relating to intoxication which have been excluded by some courts includes those made upon the basis of information transmitted to the entrant through a volunteer who had no duty to communicate the information. An example of this is found in Geroeami v. Fancy Fruit & Produce Corporation, 249 App.Div. 221, 222, 291 N.Y.S. 837, 839. In that case, the hospital record contained a description of the accident causing the patient's injury and recited that he "was intoxicated at the time." The entry was based on information given to the hospital employee by a bystander "who claimed he brought the man into the hospital." The entry was excluded on the authority of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517, a leading case under a statute like § 7903.

The Johnson case held that so much of the report of a police officer as contained statements made to him by witnesses of an accident was not admissible under the statute. The court, 253 N.Y. at page 128, 170 N.E. 518, after referring to the fact that the officer was not present at the time of the accident but made his memorandum from hearsay statements of third persons who happened to be at the scene when he arrived, stated that the legislature in enacting the statute did not intend 'to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto.' This accords with our law. To be admissible, the business record must be one based upon the entrant's own observation or upon information transmitted to him by an observer whose business duty it was to transmit it to him. The principle, however, does not render inadmissible the entries in question in the case at bar. It is apparent that those entries were made as a...