Thomas v. Hogan

• Decision Date: 12 September 1962
• Docket Number: No. 8533.,8533.
• Citation: 308 F.2d 355
• Parties: Joseph E. THOMAS, Appellee, v. Ruth A. Martin HOGAN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

308 F.2d 355 (1962)

Joseph E. THOMAS, Appellee, v. Ruth A. Martin HOGAN, Appellant.

No. 8533.

United States Court of Appeals Fourth Circuit.

Reargued May 28, 1962.

Decided September 12, 1962.

Jerrold G. Weinberg, Norfolk, Va. (Robert C. Stackhouse, and Kramer, Stackhouse & Weinberg, Norfolk, Va., on brief), for appellant.

Robert M. Furniss, Jr., Norfolk, Va. (William M. Harris, and Taylor, Gustin, Harris & Furniss, Norfolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

SOBELOFF, Chief Judge.

The principal question presented by this appeal is whether a hospital record containing an entry showing the result of a Bogen's test for intoxication is admissible as a business record under the federal shop-book rule. 28 U.S.C.A. § 1732.

In the late evening of January 24, 1959, Joseph E. Thomas, a sailor, sustained severe and permanent personal injuries when struck by an automobile as he was walking south across Bellinger Boulevard at the Naval Air Station in Norfolk, Virginia. As a result, Thomas' right leg had to be amputated, and, in the jury trial below, he was awarded damages in the sum of $40,000.00.

Bellinger Boulevard is a four-lane roadway over sixty feet wide at the point where the accident occurred. According to the plaintiff, he crossed the two west-bound lanes without incident, and when he reached the double center line of the boulevard he looked to his right (westerly) and saw the headlights of a car about 200 to 250 feet away, moving in his direction in the lane next to the center line. Thinking that he had ample time at least to cross the inside east-bound lane, he continued on. As he advanced one step into the outside lane, he looked up and saw the car about fifty feet away veering to the right and coming toward him. His testimony is: "I knew if I walked any further, that I would be right in front of the car. So I stopped. Then I figured, well, what if I take a step back, then I'll be out of the way, but I don't know if she was going to go this way or that way. I was kind of — so I just stood there, and at that moment I was hit."

Ruth A. Martin Hogan, the driver of the vehicle which struck the plaintiff, defended primarily on the ground that the plaintiff was drunk and that his negligence was the cause of the accident. She related that she was driving east on Bellinger Boulevard in the lane next to the center line at a speed of 25 to 30 miles an hour. The night was dark, but at a distance of fifty feet she saw the plaintiff standing at the double center line which divides the road. She testified: "This man stood on the double white line, and I watched him to see what he was going to do, and it appeared that he was going to stand there and wait for me to pass, and I got within less than a car length from him, and I don't know whether he tripped or fell, but he lunged out in front of the car and I swerved to the right to try to avoid him."

At the nearby Navy dispensary to which the plaintiff was taken, Dr. Schwartz, the attending physician, found that Thomas' leg had been badly fractured, and that his "speech was slurred, his pupils were bilaterally dilated and reactive and he was uncooperative." The physician also detected the odor of alcohol on the plaintiff's breath, and since the symptoms were consistent with head injury as well as with intoxication, he ordered a Bogen's test to determine the amount of alcohol in the plaintiff's blood.

The Bogen's test is a relatively simple scientific procedure, commonly performed at the Navy dispensary, which involves the absorption of alcohol from a blood sample into a chemical solution which causes it to change color. By heating the blood sample in a sealed test tube, the alcohol in it passes in a gaseous state through a connecting tube into another test tube containing a receiving solution. The discolored receiving solution is then compared visually with a series of test tubes containing discolored solutions having predetermined blood-alcohol ratios.

Following the usual procedure of the Navy dispensary, a corpsman extracted a sample of blood from the plaintiff and conducted the distillation operation in the laboratory which is on the same premises. He then brought the test tube containing the discolored receiving solution to Dr. Schwartz who made the visual comparison. The test result showed that the plaintiff had three milligrams of alcohol per cubic centimeter of blood, indicating that he was quite drunk.

At trial, the defendant called Dr. Schwartz as a witness and sought to introduce through him the result of the Bogen's test. Alternatively, she tendered the hospital record containing an entry of the test result. The plaintiff objected to both tenders, and out of the presence of the jury the District Judge heard testimony as to the nature of the test, how it was conducted and its significance.

The Judge sustained the objection to the direct testimony of Dr. Schwartz on the ground that the doctor had not seen the corpsman actually perform the test and could not state from his personal knowledge that the discolored receiving solution returned to him by the corpsman was in fact the test result of the plaintiff's blood. Since the corpsman was unavailable to supply this evidence, the Judge concluded that the defendant had "failed to establish every necessary link in the chain of identification."¹ Also, the Judge noted that Dr. Schwartz was not familiar with the names of the chemicals used in the test procedure. Finally, alluding to the shop-book rule, the Judge declared that the statute made no provision for the admission of a record of facts otherwise inadmissible, and therefore held that the hospital record entry of the Bogen's test result was likewise inadmissible.

The Judge ruled further that, while Dr. Schwartz could testify with respect to his objective observations of the plaintiff when he was brought into the dispensary, he would not be permitted to express an opinion as to whether the plaintiff was drunk. To each of these rulings the defendant duly excepted.

At the close of the evidence, the case was submitted to the jury under instructions on negligence, contributory negligence, last clear chance, sudden emergency and right of way. Upon the jury's verdict, judgment was entered for plaintiff Thomas, and defendant Hogan prosecutes her appeal.

I

The federal shop-book statute, 28 U.S. C.A. § 1732, provides:

"In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such 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 at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.

"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 its weight, but such circumstances shall not affect its admissibility.

"The term `business,\' as used in this section, includes business, profession, occupation, and calling of every kind."

The section, enacted in 1936, provides an exception to the hearsay rule and is grounded on the premise that record entries made in the usual course of a business are likely to be an accurate reflection of the various daily transactions of the business.² To the extent that a record describes a usual routine operation of a business, it is considered trustworthy. But outside the area of such usual business routine, no presumption of verity attaches. Palmer v. Hoffman, 318 U.S. 109, 111-115, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Consistently, hospital records have been held to be admissible under the statute,³ for, as Dean McCormick explains, "The safeguards of trustworthiness * * * of the records of a modern hospital are at least as substantial as the guaranties of reliability of the records of business establishments." McCormick, Evidence 609 (1954).

On all this the parties agree. A divergence in view arises, however, as to whether a record entry of a diagnostic opinion by a doctor or the result of a scientific test which requires expertness to conduct or interpret is admissible under the shop-book rule. Entries of this type, the plaintiff insists, are not covered by the statute. Decisions which lend a measure of support to his argument have been found in the Court of Appeals for the District of Columbia,⁴ the Fifth,⁵ and the Sixth⁶ Circuits and in some state courts.⁷

On the other hand, it is the defendant's position that records routinely made of diagnoses and scientific tests which are done in the regular course of a hospital's business, are entitled to admission under a presumption of trustworthiness. Supporting this argument, there are other cases in the District of Columbia,⁸ and in the Second,⁹ Third,¹⁰ Seventh,¹¹ Eighth,¹² and Ninth¹³ Circuits, and in state courts,¹⁴ as well as three prior decisions of this court.¹⁵

Primarily, the plaintiff's argument is grounded on two considerations. First, under the traditional rules of evidence, a witness must be shown to be qualified before he is permitted to give an expert opinion, and similarly, scientific tests must be qualified as reliable and properly executed before they will be received in evidence. Since direct evidence of this nature would not be admissible without laying the necessary foundation, the plaintiff argues that record entries containing information of this type should not be admitted unless the record also supplies the qualifying basis.

While we agree with the premise,¹⁶ the suggested conclusion does not follow. We do not agree that the entry, to be admissible, must speak, not only of the...