Globe Indem. Co. of New York v. Reinhart

• Decision Date: 04 March 1927
• Docket Number: 93.
• Citation: 137 A. 43,152 Md. 439
• Parties: GLOBE INDEMNITY CO. OF NEW YORK v. REINHART.
• Court: Maryland Court of Appeals

137 A. 43

152 Md. 439

GLOBE INDEMNITY CO. OF NEW YORK v. REINHART.

No. 93.

Court of Appeals of Maryland

March 4, 1927

Appeal from Circuit Court, Allegany County; Albert A. Doub, Judge.

"To be officially reported."

Action by Ettchen Wellington Reinhart against the Globe Indemnity Company of New York. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff's third, fourth, and fifth prayers, granted by the court, were as follows:

"The jury is instructed that, where death results from a fall of the deceased from a secondstory window, self-inflicted injury is not to be presumed, but the law presumes the same was the result of accident, unless the jury find from a preponderance of the evidence in the case that the fall was self-inflicted and that it was not the result of accident.

The jury is instructed that, if they find from the evidence that Boyd A. Reinhart was sane on or about noon of the day of his death, then the presumption is that his sanity continued until the time he met with his injury, and the burden is upon the defendant to prove by a preponderance of the evidence that he was not sane during said interval of time.

The jury are further instructed that, if they find from the evidence that Boyd Reinhart either fell accidentally from the window of the hospital or cast himself from the window intentionally while sane or insane, and the minds of the jury are in a state of even balance from the testimony as to which caused his injury, the presumption is that the fall was accidental."

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Charles F. Harley, of Baltimore (F. A. W. Ireland, of New York City Charles Z. Heskett, of Cumberland, and Michael James Manley of Baltimore, on the brief), for appellant.

F Brooke Whiting and Walter C. Capper, both of Cumberland, for appellee.

DIGGES J.

The appellee (plaintiff below) obtained a judgment against the appellant in the circuit court for Allegany county, from which judgment this appeal is prosecuted. The cause of action is an accident policy insuring Boyd A. Reinhart, the husband of the appellee. The policy, which is the contract sued on in this case, is as follows:

"Globe Indemnity Company of New York.

Policy No. XO-103012. Class No. One.

Single indemnity, $7,500.00.

Double indemnity, $15,000.00.

Hereby insures the person named in answer 1 of the schedule of warranties indorsed hereon against loss caused (1) directly and exclusively by bodily injury sustained solely through accidental means, or caused (2) by any physical or mental disease, subject to the terms, provisions, and limitations hereinafter contained.

Section 1. Accident Indemnity.

(a) If such injury, within 12 months from date of accident causes the insured to sustain a loss enumerated in this section, the company will pay the sum specified for such loss as follows: Life, $7,500."

"(6) The sum specified for loss of life, and any indemnity that has accrued and may be due when such loss occurs, is payable to the beneficiary named in the schedule of warranties or to such other beneficiary, if surviving, as the insured may hereafter designate, and the company accept by indorsement hereon; otherwise to the insured's administrator or executor. Any other indemnity is payable to the insured."

"(11) This policy does not cover loss caused by any means, injury, or disease which, had it been used or self-inflicted by the insured while in possession of all mental faculties, would be deemed intentional.

In witness whereof the Globe Indemnity Company of New York has caused this policy to be signed by its president and its secretary, but the same shall not be binding upon the company until countersigned by a duly authorized representative of the company.

A. Duncan Reid, Secretary.

Geo. W. Labor, President.

Countersigned at Cumberland, Md., this 13th day of March, 1913.

Boyd A. Reinhart,

Authorized Representative.

Examined: A. N.

Schedule of Warranties.

(1) My full name is Boyd A. Reinhart. Color: White."

"(14) I designate as beneficiary Ettchen Wellington Reinhart, relationship, wife, of Cumberland, state of Maryland.

Globe Indemnity Company.

Valuable--Do Not Destroy.

It is hereby agreed that policy No. XO-103012, issued to Boyd A. Reinhart is continued in force for twelve months from the 12th day of March, 1925, noon, standard time, subject to the payment of seventy-five dollars ($75.00) premium and to all the terms and provisions of said policy. Not valid until countersigned by a duly authorized representative of the company.

Countersigned at Newark, N. J., this 12th day of March, 1925, by I. F. Levy.

Boyd A. Reinhart,

Authorized Representative.

A. Duncan Reid,

President and General Manager." The undisputed facts disclosed by the record may be with substantial accuracy thus stated: That Boyd A. Reinhart, about 45 years of age, after spending about two weeks in the Laurel Sanitarium, on November 22, 1925, entered the Allegany Hospital in Cumberland, suffering from alcoholism. That on November 25th, about noon, he was visited in his room by Dr. Everhart, his attending physician, and was, in the doctor's belief, clear mentally and fully recovered from his intoxication. That he was seen by the witness William Banks, who was the elevator man at the hospital, about a quarter to 7 o'clock on the evening of the same day, standing in the door of his room, in a bathrobe. That about 15 minutes thereafter he was found lying in the concrete alley, directly beneath the window of the room which he occupied, in a pool of blood, with both femurs fractured, the thigh bones projecting from the flesh, the left bone badly shattered. That, upon being discovered, he was taken immediately to the operating room of the hospital, administered anesthetics, and the fractures reduced as far as possible. That, after the operation, he was taken to his room, suffering from shock and great pain, and, according to the testimony of the night nurse who was with him the nights of the 25th, 26th, and 27th, was delirious during the time she was with him. That he died on the morning of the 28th. That the door of his room, in which he was seen standing shortly before 7 o'clock, was about 6 feet from the window. That the distance from the floor to the top of the windowsill was 2 feet 10 inches; the width of the window being 2 feet 8 inches. That the wall from the floor to the top of the windowsill was practically perpendicular; the windowsill sloping from its top outward towards the alley.

There are thirteen exceptions in the record; twelve to rulings on evidence, and one to the ruling on the prayers. Disposing of the exceptions to the evidence, we find no error in the rulings on the first, second, fourth, and twelfth exceptions, none of which were argued or pressed by the appellant. Those upon which the appellant relies are the third, relating to the admissibility of the hospital chart, and the group of exceptions, from the fifth to the eleventh, inclusive, relating to questions asked the medical expert witness, Dr. Koon. We will dispose of these in the order named.

The third exception arose in the following manner: The witness Miss McElfish was on the stand; she being the chart nurse of the hospital assigned to the hall upon which the room occupied by Mr. Reinhart was located. It was her duty to make the entries which constituted or made up the chart, which she did from information orally furnished her by the attendant nurse. She testified that she made certain entries upon the chart, covering November 25th, the day of the accident, from information given her by Miss Gardner, the nurse who was in attendance upon Mr. Reinhart during that day; that she correctly and accurately recorded the information so given her; and it appears that Miss Gardner, the attendant nurse on that day, was out of the state, inaccessible, and beyond the process of the court at the time of the trial. It was further shown that the chart nurse made the entries on the day and at the time the information was furnished her by the attendant nurse. This chart is not reproduced in the record, but it is stated in the brief of counsel for the appellant that it was offered for the purpose of showing that at 3 o'clock on November 25th Mr. Reinhart was delirious. It was testified by the attendant physician, Dr. Everhart, that he saw Mr. Reinhart on that day about 12 o'clock, talked with him for 15 or 20 minutes, and believed him at that time to be clear mentally and fully recovered from his intoxication. It is therefore apparent that, if it could be shown that, although the patient was clear mentally at about 12 o'clock, at 3 o'clock on the same day he was delirious, it would be a material fact to which the jury would be entitled in determining whether at 7 o'clock on the same day, the time of the accident, Mr. Reinhart was or was not in a mentally sound condition.

This exception, therefore, presents a direct inquiry, and requires the decision of this court upon the question of the admissibility of the hospital chart, without having as a witness the person who had knowledge of the truth of the facts therein recorded. The hearsay rule generally prevents a witness from testifying to an entry unless the witness so testifying has personal knowledge of the truth of the matters recorded. This rule has been frequently enunciated by this court; the latest expression being contained in the case of Cohen v. Bogatzky (Md.) 131 A. 31. In that case the court, speaking through Judge Offutt, referring to a book of account, said:

"The general rule in regard to the admissibility in evidence of such a book is that, before it is admitted or used for any purpose, testimony should be given authenticating it, showing it to be a book of original entries kept

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