Reed v. Order of United Commercial Travelers, 83.
| Decision Date | 10 November 1941 |
| Docket Number | No. 83.,83. |
| Citation | 123 F.2d 252 |
| Parties | REED v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA. |
| Court | U.S. Court of Appeals — Second Circuit |
John A. Millener, of Rochester, N. Y. (E. Whitney Dillon, of Columbus, Ohio, of counsel), for appellant.
D. Mordecai Greenberg, of Rochester, N. Y., for appellee.
Before SWAN, CHASE, and FRANK, Circuit Judges.
This is an action upon a fraternal benefit certificate of insurance, which was removed from the Supreme Court of the State of New York in the County of Monroe on the ground of diverse citizenship. The case has been twice tried to a jury. In the first trial a verdict for the plaintiff was set aside by the trial judge. Upon the second trial the plaintiff again prevailed and judgment was entered upon the verdict.
The defendant's constitution, which the insurance certificate incorporates, provides "This Order shall not be liable to any person * * * for any accident (fatal or otherwise) to a member who is in any degree under the influence of or in consequence of having been under the influence of intoxicating liquor."
The insured met his death as a result of injuries sustained in an accident to the automobile in which he was riding. The accident occurred about 12:40 A. M. on December 13, 1939. The sole issue raised by the defendant's answer is that the insured was under the influence of intoxicating liquor at the time. To sustain its defense the defendant offered in evidence a portion of the decedent's case record in the hospital to which he was admitted in an unconscious condition at 1:10 A. M. on the morning of the accident. The record was produced pursuant to subpoena and was properly identified as a record kept by the hospital in the ordinary and usual course of its business. The portion offered in evidence read as follows: "Was reacting very well — still apparently well under influence of alcohol." It was signed by Dr. T. W. Smith, who was the doctor on emergency duty at the hospital when Reed was admitted and whose signature to the record was properly proved. The offered evidence was excluded by the district judge on the ground that it "is not a record of the act, transaction or occurrence, but is an observation of the doctor, who admitted the patient to the hospital." In so ruling we think the trial judge committed error. That a hospital record of the attending doctor's diagnosis of a patient's condition is competent evidence is no longer open to question in this court. Ulm v....
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Thomas v. Hogan
...Estate v. Com'r, 147 F.2d 331 (2d Cir. 1944) (diagnosis of cerebral hemorrhage held admissible); Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941) (diagnosis that patient "still apparently well under the influence of alcohol" held admissible). See also, Travelers Ins......
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Hoffman v. Palmer
...92, 93, 3 A.2d 224, where the Connecticut court, in turn, quoted with approval from the Lutz case. In Reed v. Order of United Commercial Travelers of America, 2 Cir., 1941, 123 F.2d 252, we held that a hospital record of an attending doctor's diagnosis of a patient's condition was admissibl......
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Falcone v. New Jersey Bell Tel. Co.
...76 S.Ct. 475, 100 L.Ed. 855 (1956); Buckminster's Estate v. Commissioner, 147 F.2d 331 (2 Cir. 1944); Reed v. Order of United Commercial Travelers of America, 123 F.2d 252 (2 Cir. 1941); Glawe v. Rulon, 284 F.2d 495 (8 Cir. 1960); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.......
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Wadena v. Bush
...considering the issues raised here. See, Thomas v. Hogan, 308 F.2d 355 (4 Cir. 1962) (admissible); Reed v. Order of United Commercial Travelers of America, 123 F.2d 252 (2 Cir. 1941) (admissible); Lusardi v. Prukop, 116 Cal.App. 506, 2 P.2d 870 (1931) (inadmissible); Weller v. Fish Transpor......
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Rule 803 EXCEPTIONS TO THE RULE AGAINST HEARSAY — REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS
...decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9th Cir. ......
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FEDERAL RULES OF EVIDENCE
...federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order ofUnited Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9t......
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28 APPENDIX U.S.C. § 803 Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant Is Available As a Witness
...decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9th Cir. ......