Watts v. Delaware Coach Co.

• Decision Date: 15 April 1948
• Docket Number: 76
• Court: Delaware Superior Court
• Parties: JAMES P. WATTS v. DELAWARE COACH COMPANY, a coporation of the State of Delaware

58 A.2d 689

44 Del. 283

JAMES P. WATTS v. DELAWARE COACH COMPANY, a coporation of the State of Delaware

No. 76

Superior Court of Delaware, New Castle

April 15, 1948

The motion for a new trial is granted.

P Warren Green for Plaintiff.

William H. Foulk and Herbert L. Cobin for Defendant.

LAYTON J., sitting.

OPINION

LAYTON, J.

On the night of August 31, 1946, Plaintiff testified that he attempted to board a bus operated by Defendant which was standing at a regularly designated bus stop to receive passengers and that as he placed his foot upon the step, the door was closed on his ankle and the bus started, throwing him to the ground with a sharp twist to his ankle. There were no witnesses to the accident. Defendant, who did not deny the injury, defended upon the ground that Plaintiff was hurt, not in attempting to board its bus, but because he twisted his ankle while walking at or near the bus stop. In support of this contention Defendant produced all six drivers who operated its buses along the particular route on the evening in question. All testified that no accident occurred as related by Plaintiff. Defendant then offered in evidence the records of the hospital where Plaintiff was treated which contained a statement purportedly made by Plaintiff that he had broken his ankle while walking along the sidewalk. The hospital interne who treated Plaintiff for his injuries on the night in question was called to the stand to qualify the hospital report for admission under the Uniform Business Records Act, Vol. 45 Laws of Delaware Chapter 252, which reads as follows:

"4704A. Section 19A. Business Records as Competent Evidence: -- The term 'business' shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not. A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. This section shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it."

Plaintiff's counsel strenuously objected to the admission of that part of the hospital record, containing the words "Patient states he twisted ankle while walking along street," for the reason that the interne had no independent recollection of treating Plaintiff or of his making the statement, and therefore could not be cross-examined as to the circumstances surrounding the making of the statement. In particular, the admission of the statement was resisted for the reasons (a) there was evidence that Plaintiff could not have made the admission in question because he was unconscious or dazed when admitted to the hospital and remained so for several hours thereafter thus rendering the source of information as to the making of the statement so doubtful and unreliable as to justify its exclusion under the Act and (b) such language did not constitute an entry made in the regular course of the business of a hospital. Conceding that the statement, if properly proved, would constitute an admission against interest, he nevertheless insisted that it failed to meet the requirements of the Act and should be excluded as hearsay.

A review of the evidence convinces me that Plaintiff's objection to the admission of the statement in question based upon ground (a) is not tenable. Admittedly there was evidence that Plaintiff was semi-conscious or dazed when admitted to the hospital from which an inference could be drawn that he should not be held responsible for what he said with respect to the manner in which the accident occurred. However, there was strong evidence directly to the contrary. ^[1] Moreover, the hospital record fails to bear out his contention that he was unconscious. Accordingly, insofar as this ground of objection goes, I am of the opinion that the whole record should have been admitted leaving it to the jury to decide what weight should be attached to the statement.

The remainder of this opinion will be devoted to a consideration of the question whether the statement in controversy was recorded within the scope of hospital business. In recognition of the difficulties inherent in the proof of business records in the trial of cases, Uniform Business Records Acts have gradually been enacted in many states. In theory, regular entries constituting the business records of a corporation or institution, and otherwise conforming to the safeguards set out in the Act, are said to be so stamped with the reasonable guarantee of trustworthiness as to justify their admission in evidence as an exception to the hearsay rule. ^[1] Wigmore on Evidence, Vol. V, Sec. 1521 et seq. Accordingly, the regularly kept records of a business, and specifically speaking of a hospital, which fairly conform to the requirements of the Uniform Business Records Act are now constantly offered and admitted in evidence. And this is so even though the witness who made up the record from actual knowledge, has forgotten the incident or event in question. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 302. Presumably also, the person or persons who actually compiled the record being unavailable, a hospital librarian, having no knowledge of the event, might qualify the record for admission. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 302. Weis v. Weis, 147 Ohio St. 416, 72 N.E. 2d 245, 169 A.L.R. 668, contains an excellent general discussion of the subject as well as a review of a number of the cases dealing with the admissibility of hospital records under Uniform Business Records Acts. At page 250 of 72 N.E.2d the Court states:

"Such a hospital or physician's office record may properly include case history, diagnosis by one qualified to make it, condition and treatment of the patient covering such items as temperature, pulse, respiration, symptoms, food and medicines given, analysis of the tissues or fluids of the body and the behavior of and complaints made by the patient. Globe Indemnity Co. v. Reinhart, 152 Md. 439, 446, 447, 137 A. 43; Adler v. New York Life Ins. Co., (8 Cir.) 33 F.2d 827; New York Life Ins. Co. v. Bullock, (D.C.) 59 F.2d 747; Lund v. Olson, 182 Minn. 204, 234 N.W. 310, 75 A.L.R. 371; 6 Wigmore on Evidence, 3d Ed., 36, Section 1707.

"The purpose of Section 12102-23, General Code, is to liberalize and broaden the shopbook rule, recognized at common law as an exception to the general rule excluding hearsay evidence, and to permit the admission of records regularly kept in the course of business and incident thereto, and, as applied to hospital records, to avoid the necessity and thereby the expense, inconvenience and sometimes the impossibility of calling as witnesses the attendants, nurses and physicians who have collaborated to make the hospital record of a patient. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297; 6 Wigmore on Evidence, 3d Ed., 36,Section 1707.

"The exception to the hearsay rule of evidence in such cases is based on the assumption that the records, made in the regular course of business by those who have a competent knowledge of the facts recorded and a self-interest to be served through the accuracy of the entries made and kept with knowledge that they will be relied upon in a systematic conduct of such business, are accurate and trustworthy. In other words, such records are accepted as accurate and trustworthy, until inaccuracy is shown, upon faith in the routine by which and in the purpose for which they are made. Globe Indemnity Co. v. Reinhart, supra. Of course, if it should appear that such records have been made and kept solely for a self-serving purpose of the party offering them in evidence, it would be the duty of a trial court to refuse to admit them."

However, the precise question before me is whether a declaration against interest by a party to a case is admissible by way of a hospital record under circumstances where no witness was called to testify of his own memory that he heard the statement made.

A number of cases cited to me do not support the exact proposition here. In most, the statement appearing in the particular record was ruled out either because it was (a) completely self-serving as in Hoffman v. Palmer, (2 Cir.) 129 F.2d 976, or (b) pure hearsay on its face as in Slater v. United Fuel Gas Co., 126 W. Va. 127, 27 S.E. 2d 436. Furthermore the decisions bearing more or less directly on the question are somewhat in conflict.

Hoffman v. Palmer, (2 Cir.) 129 F. 2d 976, involved a railway crossing collision. After the event, the engineer gave his version of the accident to his Superintendent and his statement was entered, somewhat informally, in the records of the railway company. The engineer died. In a suit by Plaintiff's intestate against the railway company for damages the statement of the deceased engineer was offered in evidence by the Defendant railroad as to the manner in which the accident occurred. Judge Frank ruled out the statement. He concluded it was self-serving and did not carry with it that superficial guarantee of trustworthiness necessary to qualify it for admission under the Federal Business Records Act. ^[1] Judge Frank's philosophy apparently is that if the circumstances surrounding the making of the statement are such as to indicate a reasonable guarantee of trustworthiness it should be admitted without much regard to other requirements of the Act. H...