Galli v. Wells
| Decision Date | 04 April 1922 |
| Parties | FLORENCE GALLI, Appellant, v. ROLLA WELLS, Receiver of the UNITED RAILWAYS COMPANY OF ST. LOUIS, a Corporation, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.
AFFIRMED.
Judgment affirmed and cause remanded.
W. H Douglass for appellant.
(1) The City Hospital Record offered in evidence by the defendant (made three years prior to the accident in question) was incompetent before the passage of the statute relied on by the defendant (R. S. 1919, Section 5812), and is incompetent since the statute was passed and under the statute. Connor v. Ins. Co., 78 Mo.App. 131; Ohmeyer v Woodmen Circle, 91 Mo.App. 201; Reynolds v. Ins. Co., 88 Mo.App. 679; Finer v. Nichols, 122 Mo.App. 497; Levels v. Railroad, 196 Mo. 606; Moore v. Gans & Sons Mfg. Co., 113 Mo. 98; Ennis v. Van Roden, 185 A.D. 782; Dougherty v. Kalbach, 175 N.Y.S. 837; In re Barney's Will, 174 N.Y.S. 242; Raymond v. Flint, 225 Mass. 521; Baird v. Reilly, 92 F. 884; Jordan v. Apler, 105 A. 620; Estate of Everts, 163 Cal. 449; In re Flint, 100 Cal. 391; Life & Accident Ins. Co. v. Cox, 174 Ky. 683, l. c. 688; Griebel v. Railroad Co., 95 A.D. 214; Buffalo etc. Trust Co. v. Mut. Aid Ass'n, 126 N.Y. 450; Harkness v. Swissvale, 238 Pa. 546; Osborn v. Railway Co., 87 Vt. 111; R. S. 1919, sec. 5812. (a) The hospital record was mere hearsay evidence. See authorities, supra. (b) The hospital record was incompetent under the evidence in this case, for the testimony shows that the whole record offered was written by Dr. Dahms, and it purports to be a record of what Dr. Kerwin and others did, and is not a record of what Doctor Dahms himself did. (c) If the hospital records were admissible for any purpose, their exclusion in this case was harmless error. (2) The deposition of Viola DeRone was admissible in evidence under the showing made at the time it was offered, and under the facts disclosed in the deposition itself. R. S. 1919, sec. 5467; Mondy v. Dressed Beef and Provision Co., 149 Mo.App. 413; Mayne v. Kansas City Ry. Co., 229 S.W. 389; McCutchen v. McCutchen, 9 Port. (Ala.), 654; Chicago, etc., Railroad Co. v. Krayenbuhl, 70 Nebr. 769; Tiele Packing Co. v. Trocke, 136 Minn. 348; Tex. & P. Ry. Co. v. Reagan, 118 F. 817; Ry. Co. v. Hubbard, 116 Ind. 194. (3) The verdict in this case is not excessive. Gibbs v. Almstrom, 176 N.W. 173. Additional authorities under Point one of Points and Authorities. Beglin Admr. v. Ins. Co., 173 N.Y. 374; Ennis v. VanRoden, 185 A.D. 782.
T. E. Francis and W. H. Woodward for respondent.
(1) Records required to be kept by general law are admissible to prove facts required to be incorporated in the record, upon a showing that the record comes from the proper custodian, without further proof of the verity of the recitals therein. Greenleaf on Evidence (16 Ed.) secs. 483, 484; 3 Wigmore, Evidence (1904), sec. 1643, p. 2002; Reynolds v. Prudential, 88 Mo.App. 679; Finer v. Nichols, 122 Mo.App. 497; Priddy v. Boice, 201 Mo. 309; Levels v. Railroad, 196 Mo. 606; King v. Insurance Co., 133 Mo.App. 612; St. L. Gaslight Co. v. St. Louis, 86 Mo. 606; Moore v. H. Gaus & Sons, 113 Mo. 98; Collins v. Life Ins. Co., 112 Mo.App. 220; Ohmeyer v. Woodmen, 91 Mo.App. 189; State v. Pagets, 92 Mo. 310; Rebas v. Rubber Co., 37 R. I. 189; Townsend v. Pepperell, 99 Mass. 40; Kennedy v. Doyle, 10 Allen (Mass.) 161. The record kept by the superintendent of the City Hospital was one required to be kept by law. Sec. 5812, R. S. 1919; Charter City of St. Louis, Art. 13 sec. 14; Sec. 1820, Wagner's Code City of St. Louis, 1914, p. 1281. (2) A mere showing that a person intended to leave the jurisdiction does not authorize the reading of his deposition. Sec. 5467, R. S. 1919; Gaul v. Wenger, 19 Mo. 542; Wetherell v. Patterson, 31 Mo. 458; Livermore v. Eddy, 33 Mo. 547; Mondy v. St. L. Dressed Beef, etc. Co., 149 Mo.App. 413. (3) Where a particular witness is equally available to both parties, no presumption arises by reason of failure to call such witness and reasons, if any, for failing so to do, are not a proper subject of inquiry. Ray v. Camp, 110 Ga. 818, 36 S.E. 242; Crane v. K. C. Southern Railway Co., 199 Mo.App. 448. The verdict, influenced by improper instructions of the court, is excessive. Wellman v. Met. St. Railway Co., 219 Mo. 126; Kirby v. St. L. & San Francisco Ry. Co., 146 Mo.App. 304; Stokes v. Met. St. Railway Co., 173 Mo.App. 676; Maggioli v. Transit Co., 108 Mo.App. 416.
--Plaintiff obtained a judgment against the defendant for $ 7500 in a personal injury case, it being charged that one of the defendant's cars suddenly started while she was in the act of alighting therefrom at a regular stopping place, causing her to be thereby injured. The lower court sustained defendant's motion for new trial upon the ground that it erred in refusing to admit and receive in evidence the record of the City Hospital of the City of St. Louis containing information in reference to the physical condition and treatment of plaintiff while in such hospital. From the order sustaining the motion for new trial plaintiff has appealed.
It is conceded that the evidence is sufficient to uphold the judgment on the question of defendant's negligence. The sharply contested issue in the case was on the amount of damages and whether plaintiff's injuries were caused by the accident.
Plaintiff's evidence tended to prove that in addition to a sprained ankle, she suffered from a retroversion or tipping backward of the womb or uterus which resulted in extreme nervousness. Her physician testified that the symptoms of nervousness, condition of the ankle and tenderness in the back were of recent origin, but that the time at which the misplacement of the uterus took place couldn't be considered except from the history of the case. He testified that the conditions referred to including the retroversion could have been caused by the fall from defendant's street car, and that her condition would not improve without a surgical operation.
A physician appointed by the court to examine plaintiff testified that he found plaintiff's tonsils inflamed, her ear-drum perforated and that the septum of her nose was pushed to the right side, which condition could cause the headaches and nervousness complained of. Except for the inflammation of the tonsils, the witness testified that the conditions referred to had existed for years. He also testified as to the retroversion of the womb, and that in his opinion this condition was caused by some infection.
On cross-examination plaintiff testified that in August or September, 1917, which was almost three years before the accident, she was operated on at the St. Louis City Hospital for female trouble, and that she was told that in this operation her appendix was removed and her uterus sewed up, and she stated that for seven or eight months following the operation she wore a bandage around her abdomen as a support.
After a proper identification defendant offered in evidence the City Hospital record of plaintiff's case, which is as follows:
"EXAMINATION AT CITY HOSPITAL ON FLORENCE MARLEN
(GALLI) BY DR. KERWIN
ON AUGUST 25, 1917.
'Abdomen negative. Vulva and vagina normal. Cervix point in exis of vagina. Body of uterus is pointed for back in cul de sac and fixed. Any attempt to bring it forward--painful. Ademxs--normal.
Diagnosis: Fixed retroversion. Treatment operation.'
August 31, 1917.
Operation performed by Dr. Kerwin. Record as follows:
'Abdomen opened through subumbilical incision. Uterus freely movable, far back in the cul de sac, tubes and ovaries far back also. Uterus brought forward, round ligaments shortened by bringing through broad ligaments and out over the fascia.
Appendix removed.
Abdomen closed by layer sutures. After recti muscles had been brought together by suture, it was discovered that forceps on the right round ligament had been removed. Fascia is closed, and left round ligament sutured to the outer surface, and the skin closed with catgut.
Diagnosis: Movable retroversion.
Operation: Webster-Baldy, Ventrical fixation.
WARD 20
9-4-17
Received patient as past operation
case wound dressed--Guienenema.
G. D.
9-7-17
Complains considerably of pain in
abdomen. Eyes trouble her some.
G. D.
9-9-17
Patient feeling good.
9-12-17
Up in the afternoon; troubled with
head aches at times; some pain in
lower left abd.
9-17-17
Patient up and walking--passed 3
days examined by Dr. Kerwin.
Uterus in good position. Patient
complains of pain after urination;
says that it feels as if her womb is
going to fall out.
9-24-17
Patient has been examined by Dr.
Kerwin & Gynocological card pro-
nounced O. K. Wound in good
condition. Patient still complains
of pains in lower extremities.
It appeared that this record was made by Dr. Dahm, a junior intern at the hospital, and was made and kept in the usual and regular way that all records of patients were made and preserved.
Plaintiff's counsel objected to the record on the ground that it was incompetent and not the best evidence; that it is a record of Dr. Dahm's treatment, and that plaintiff is entitled to the right of cross-examination and is also entitled to have the doctor who made the record present to testify, which is the best evidence. It appeared that Dr. Dahm at the time of the trial was a practicing physician in the City of St Louis. The clerk of the hospital who had charge of the record and produced it in court testified that Dr. Dahm...
To continue reading
Request your trial