Fox v. Peninsular White Lead & Color Works

• Decision Date: 10 June 1892
• Citation: 52 N.W. 623,92 Mich. 243
• Parties: FOX v. PENINSULAR WHITE LEAD & COLOR WORKS.
• Court: Michigan Supreme Court

52 N.W. 623

92 Mich. 243

FOX v. PENINSULAR WHITE LEAD & COLOR WORKS.

Supreme Court of Michigan

June 10, 1892

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Action by John Fox against the Peninsular White Lead & Color Works. Judgment for plaintiff. Defendant brings error. Reversed.

MONTGOMERY J., concurs in the result.

Chas. J. Lowrie, (James H Pound, of counsel,) for plaintiff in error.

Cutcheon, Stellwagen & Fleming, for defendant in error.

MCGRATH J.

This case was before this court in January, 1891, and is reported in 84 Mich. 678, 48 N.W. 203, to which reference is made for a statement of the facts. On the second trial plaintiff recovered a judgment, and defendant appeals. It appears that for some time after the injury plaintiff was at the Wayne county poorhouse. On the trial plaintiff offered in evidence the following poormaster's ticket: "Detroit, July 28, 1888. To the keeper of the Wayne county house: Please admit John Fox to the Wayne county poorhouse, and provide for his necessities as a city charge. JOHN F. MARTIN Superintendent of the Poor." Upon the back of this ticket is the following indorsement: "This man was ill with arsenical poisoning at Harper Hospital, from which he was discharged on June 30. Shortly after he was affected with paralysis and an�ths�sia of the feet, due to the same cause, and, being unable to earn his living, is now sent to you for treatment. H. ERICKSON, City Physician." Defendant's counsel objected to the admission of both ticket and indorsement, but both were admitted and read in evidence. Neither was admissible. The fact that the poorhouse ticket was necessary to his admission did not make it admissible as evidence, nor did the fact that the state required a record to be made of his admission. The fact of his admission to the poorhouse as a public charge was irelevant, and could not but prejudice the jury in his favor. Plaintiff had, before his employment by defendant, been employed by the Acme White Lead & Color Works, in grinding dry color and vermilion, which contained a large percentage of lead, and it was insisted by defendant that plaintiff's troubles were attributable to lead, rather than arsenic, poisoning. Dr. Erickson was not called, and no reason was given why he was not, except that upon the previous trial he was called by defendant, and it is urged by plaintiff's counsel that he was presumably hostile. The indorsement purports to be simply information sought to be conveyed by Dr. Erickson to the officials at the poorhouse. It is urged that this information was usually entered upon the records of the poorhouse, and was admissible as a part of such records. There is no statute requiring the city physician to give such information or providing for its record. If entered at all, it was entered upon the official registry, undoubtedly kept of each patient on his admission. The rule is that such registrations are not, in general, evidence of any facts not required to be recorded in them, and which did not occur in the presence of the registering officer. Thus a registry of marriage or of baptism is evidence only of that fact. 1 Greenl. Ev. � 493. The mention of the child's age in the register of christenings is not proof of the day of its birth, to support a plea of infancy. Burghart v. Angerstein, 6 Car. & P. 690. Regarding certificates given by persons in official station, the rule is that, if the person was bound to record the fact, the proper evidence is a copy of the record; but as to matters which he was not bound to record, his certificate, being extra-official, is merely the statement of a private person. 1 Greenl. Ev. � 498; Oakes v. Hill, 14 Pick. 442.

Plaintiff called as a witness one Dr. Zimmerman, who was the practicing physician in charge of the Wayne county poorhouse, who stated that "he became acquainted with the plaintiff; that plaintiff's feet were partially paralyzed; he did not seem to have any use of his feet to any extent; that he was in the hospital about eight months; that he had no other sickness, that witness could remember; that he has paid no special attention to the subject of the effect or nature of arsenical or other poisons, but knew that arsenic and what was known as 'blue vitriol' were deadly poisons; that he thought there was an eruption from external arsenical poisoning, and that partial paralysis, to a greater or less degree, is one of the consequences of arsenical poisoning that when Fox came he brought with him a statement of his history, and that paper was shown by Fox, and that at the time H. Erickson was one of the city physicians of the city of Detroit. Question. What was your diagnosis? Have you any recollection now of it at the time you received him? Answer. Partial paralysis. Q. Arising from what cause? A. I think the cause was based upon that paper. Q. What did you arrive at from your inspection of it, and the information that was communicated to you by that there as a part of the history of the case? From the history of the case, what did you attribute that paralysis to in your diagnosis? A. From arsenical poisoning." On cross-examination witness testified that he never had a case of arsenical poisoning except this one; that he deduced his diagnosis of paralysis from plaintiff's appearance, and the cause was from the paper, and that he knew nothing about the case, except a paper that was before him, and is not in evidence." Defendant's counsel moved that the testimony of the witness as to the diagnosis be stricken out, but the motion was overruled, and defendant excepted. It does not...