Lee v. Housing Authority of Baltimore City

• Decision Date: 07 January 1954
• Docket Number: No. 31,31
• Citation: 101 A.2d 832,203 Md. 453
• Parties: LEE et al. v. HOUSING AUTHORITY OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

Page 453

203 Md. 453

101 A.2d 832

LEE et al. v. HOUSING AUTHORITY OF BALTIMORE CITY.

No. 31.

Court of Appeals of Maryland.

Jan. 7, 1954.

Theodore Sherbow, Baltimore (David Friedman, J. Sarsfield Sweeny, Hershey, Donaldson, Williams & Stanley and Sherbow & Sherbow, Baltimore, on the brief), for appellants.

J. Gilbert Prendergast, Baltimore (Clark, Thomsen & Smith, Baltimore, on the brief), for appellee.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from judgments for the defendant in four suits arising out of a fire at 2401 Maisel Court, in Baltimore. The house at this location was owned by the Housing Authority of Baltimore City, a corporation, and leased to Charles Bramhall and Mildred Bramhall, his wife. As a result of the fire Mrs. Bramhall was burned so severely that she died. Her daughter by a previous marriage, Sharon M. Lee, aged four, received serious burns, as did Charles Bramhall. At the conclusion of the plaintiffs' case the court directed verdicts for the defendant. The questions presented are whether the evidence produced by the appellants was legally sufficient to make a prima facie case to be submitted to the jury on the issue of liability, and whether the court properly excluded from the evidence certain entries in the hospital records.

The testimony showed that on June 4, 1950, the Bramhalls were living at 2401 Maisel Court, a one-story dwelling without a basement, containing in the front an entrance hall with a living room on one side and a bedroom and bath on the other. There was a kitchen and alcove pantry in the rear measuring together about 8 X 15 feet. The pantry was partitioned off from the kitchen without any door, and contained an automatic gas hot water heater and tank, about 5 feet high, resting on the floor. The kitchen had a separate entrance from the rear; the main entrance to the house was into the hall and living room in the front.

On the date mentioned Mr. Bramhall, a bus operator employed by the Baltimore Transit Company on the night shift, returned from work about 5:30 A.M. He fixed his own breakfast and tried to take a bath before going to bed. He found there was no hot water. He testified that he had been instructed by the Housing Authority not to touch the heater. 'You are not supposed to light them if they go out,' but to report the matter to the Authority. He had reported a similar failure to obtain hot water about a month or six weeks before, and the service man employed by the Authority had corrected the condition the same day. There had been no further trouble. June 4, 1950 being a Sunday, the office was closed and Bramhall did not report the failure. He simply went to bed without examining the heater. His testimony as to the instructions given was corroborated by a neighbor who had lived in Maisel Court for three years prior to the fire. This witness said that the tenants were instructed not to touch the heaters 'unless there's danger of some explosion. Take a pipe wrench or Stillson wrench to cut off the gas on the side. Otherwise, you're not supposed to touch it.'

Toward evening, while Mr. Bramhall was watching television in the living room with his wife and stepdaughter, Mrs. Bramhall asked him what he wanted for his night lunch and he replied that he wanted tuna fish sandwiches. She went into the kitchen. Canned goods were kept on shelves in the pantry opposite the heater. A second or two after she left the room he heard her scream. He rushed into the kitchen and saw her in the pantry with her dress all in flames. He saw flames 'All around the automatic hot water heater, about a foot away from it, six inches, all around the floor.' He tried to put out the flames on her dress and dragged her out the back door. She yelled, 'Where's Sharon?' He ran into the house to find the child. She wasn't in the kitchen or pantry; he found her in a corner of the bedroom 'all in flames.' He carried the child out through the kitchen. 'I tripped over my wife, laying on the floor.' Evidently Mrs. Bramhall had followed him back into the kitchen and fallen there. Two neighbors rushed into the kitchen, which was 'all flames and smoke,' and dragged Mrs. Bramhall out. She was terribly burned. An ambulance took them to the University Hospital where she died a few hours later. He testified that on the way to the hospital 'she was trying to talk and I couldn't understand her * * * she was asking me how I was, was I burned bad, and how Sharon was----.'

Mr. Bramhall testified that there were paint cans on the pantry shelves as well as canned goods. They had painted the interior of the house, including the kitchen, some time before the accident, with readymixed paint supplied by the Housing Authority. The cans in question contained paint that had been left over, but the tops had been tightly replaced. There was no turpentine, oil or similar material on the shelves. A Battalion Chief of the Fire Department testified, from examination of the premises after the fire was extinguished, that the fire had originated in the pantry. '* * * most of the burning was in the pantry and of course extended out into the kitchen and to some extent into the living room.'

The hospital records were offered in evidence, but certain entries therein were excluded, over objection '* * * to all portions * * * which purport to state what was the cause of the alleged injuries * * *.' The entries were as follows:

'Entrance Note and History--Mildred Bramhall--This 23 year old white female was brought to the Accident Room this evening after being burned when a gas stove exploded near her. She sustained 2~ to 3~ burns over 95% of the body surface. * * * K. Y. Smith, Jr., M.D.' On the same date an 'Entrance Note' for Mildred Bramhall was made by J. B. McMinch, Jr. 'This 23 year old white female was admitted via the Accident Room following the explosion of a gasoline water heater in a confined area. The patient was burned over her entire body surface except the soles of feet and scalp approximately 95%--almost all 2nd~ possibly some 3rd~ * * *.' There was also an 'Accident Room Report' concerning Charles Bramhall aged 28, 'Complaint: Gas explosion at 2401 Maisel Court.'

The appellants contend that these entries should have been admitted under Section 68, Article 35 of the 1951 Code. This section provides that 'Any writing or record * * * made as a memorandum or record of any act, transaction, occurence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record * * *. * * * All other circumstances of the making of such writing or record * * * including lack of personal knowledge by the entrant or maker, may be shown to affect the weight, but not the admissibility thereof. The term 'business' shall include business, profession, occupation and calling of every kind.'

In Bethlehem-Sparrows Point Shipyard v. Scherpenisse, 187 Md. 375, 50 A.2d 256, 259, we held that a hospital record containing an entry that 'Patient cut left foot and developed an infection involving entire leg' some days prior to his admission was admissible, although the entrant could have had no personal knowledge of the event recorded. It was pointed out that Maryland has adopted the Model Act formulated in 1927, containing somewhat broader language than the Uniform Act formulated in 1936. It is true that in the case of Beverley Beach Club v. Marron, 172 Md. 471, 475, 192 A. 278, 280, where the entry stated that the patient 'stated his foot was cut by broken glass', it was said that it was 'not the purpose of the statute to create facts which did not exist and appellee himself testified he did not know what caused his injury.' Under the circumstances it would appear that the prior statement had no probative value.

In Scott v. James Gibbons Co., 192 Md. 319, 330, 64 A.2d 117, 122, the trial court excluded an entry in hospital records that on 'information given by the State Police the man was driving to work at the Calvert Distilleries where he was a guard,' at the time of the collision. We said: 'Of course such records are admissible, and statements therein showing the history of the patient's physical condition are proper. History in this connection means the physical background as well as the present condition of the patient. It is proper for the record to show the patient was hurt in an automobile accident, but the particulars of such accident, contained in a hospital record, should be deleted and not submitted to a jury in a case like this. This is hearsay.' The fact that it is hearsay would not, however, be a fatal objection under the statute, which specifically states that such an objection goes to the weight and not to the admissibility of the statement. Cf. Morrow v. State, 190 Md. 559, 562, 59 A.2d 325. But the ruling is supportable on the ground that the details of the statement went beyond the legitimate scope of medical inquiry. In the language of the Supreme Court of Pennsylvania, the occurrence recorded must be 'pathologically germane to the physical or mental condition which caused the patient to come to the hospital for treatment.' Commonwealth v. Harris, 1945, 351 Pa. 325, 41 A.2d 688, 691. Cf. Watts v. Delaware Coach Co., 1948, 5 Terry 283, 44 Del. 283, 58 A.2d 689 and Green v. City of Cleveland, Ohio App. 1948, 79 N.E.2d 676. It may be noted that all these cases were decided under statutes based on the Uniform Act which gives a wider discretion to the trial court as to admissibility. See, however, Judge Medina's discussion of the New York Statute in 30 Cornell L.Q. 449.

In the instant case we think the record of the alleged cause of the burns to be treated was a proper part of the medical history. The entries do not undertake to establish the cause of the explosion, but merely relate to the nature of the...