Whittaker v. Thornberry

• Decision Date: 12 March 1948
• Citation: 306 Ky. 830,209 S.W.2d 498
• Parties: WHITTAKER et al. v. THORNBERRY.
• Court: Kentucky Court of Appeals

209 S.W.2d 498

306 Ky. 830

WHITTAKER et al. v. THORNBERRY.

Court of Appeals of Kentucky

March 12, 1948

Appeal from Circuit Court, Common Pleas Branch, First Division Jefferson County; Roscoe Conkling, Judge.

Action by Roy Thornberry against Ray T. Whittaker and another partners doing business as Blue Motor Coach, for injuries allegedly sustained by plaintiff when struck by defendants' bus. From judgment for plaintiff, the defendants appeal.

Reversed.

R. W. Kennon, of Lexington, and Hugo Taustine, of Louisville, William Swinford, of Lexington, for appellants.

Morris & Garlove, of Louisville, for appellee.

STANLEY Commissioner.

The appeal is from a judgment for $8,000 for personal injuries sustained by Roy Thornberry when, as he claims, he was struck by a bus of the appellants, Ray T. Whittaker, and another partners doing business as 'Blue Motor Coach,' on the southeast corner of Liberty and Floyd Streets, in Louisville on Sunday afternoon, January 6, 1946.

The evidence of the plaintiff, supported by several witnesses, was that the bus was driven up Liberty Street at a rapid speed and, without the driver exercising due care, struck the plaintiff as he was crossing from the south to the north side of the street along the east side of Floyd. The evidence for the defendants, supported by a number of witnesses, was that the bus was driven at a lawful speed, had come to a practical stop on the west side of Floyd Street in order to let a police patrol car or ambulance pass, and was moving very slowly when the plaintiff stepped off the curb into the front corner of the bus; aoso that he was under the influence of intoxicating liquor. While we regard the weight of the evidence to support the defendants' claims, it seems sufficient to express the opinion that the court properly overruled the defendant's motion for a peremptory instruction. But the judgment must be reversed for what we deem to be errors.

1. The defendants introduced a member of the staff temporarily in charge of the Marine Hospital, an institution of the United States government, Veteran's Administration, to which the plaintiff, Thornberry, was taken from the Louisville General Hospital shortly after having been taken there from the scene of the accident. They offered to prove the records of the hospital pertaining to the plaintiff's case. The court sustained an objection and the defendants made an avowal by means of the doctors' testimony heard in chambers without the hearing of the jury. It was therein developed that the two doctors who had treated the patient were no longer members of the staff and were not in the city. The defendants also presented an employee of the Louisville General Hospital who had the custody of the records of the patients there. She did not know who made the record of the plaintiff's case on the occasion of his admittance and treatment, for the record was not signed and there were a great many physicians at the hospital. This evidence was also rejected.

As stated in a note, 75 A.L.R. 378, there is a conflict among the courts as to whether such evidence is admissible at all and more confusion as to the reason. The weight of authority seems to be that when a proper foundation has been laid, hospital records are admissible as to all matters proper for inclusion in a record of such nature.

It appears that this court has not hitherto ruled upon the point generally. In National Life & Accident Insurance Company v. Cox, 174 Ky. 683, 192 S.W. 636, in an action on an accident insurance policy, it was held that no error was committed by the trial court in refusing to admit in evidence a hospital record containing memoranda of the insured's condition in order to prove the facts therein stated. That decision is sound but is not general authority against the admissibility of such a record because what was sought to be proved was only the noted remarks of a nurse or intern. In consolidated Coach Corporation v. Garmon, 233 Ky. 464, 26 S.W.2d 20, the defendant was not permitted to prove by an entry on a hospital chart that the plaintiff had suffered a previous miscarriage. And in Pacific Mutual Life Insurance Company v. Arnold, 262 Ky. 267, 90 S.W.2d 44, 45, we expressed doubt about the competency of a hospital record showing previous physical disabilities, citing the Cox case, supra, as authority.

The basic rule is, of course, that the person whose statement is received as testimony should speak from personal observation or knowledge; but the necessities of a case and the trustworthiness which experience has taught have introduced exceptions to the hearsay rule. Thus, there has come down to us the shopbook rule, whereby entries made in the ordinary and regular course of duty by persons not having knowledge of the facts entered are admitted as competent evidence. See Louisville & Nashville Railroad Company v. Daniel, 122 Ky. 256, 91 S.W. 691, 3 L.R.A.,N.S., 1190; Joseph Denunzio Fruit Company v. Louisville & Nashville Railroad Company, 276 Ky. 168, 123 S.W.2d 813.

Following his reasoning for the admissibility of this character of evidence, Wigmore, Section 1530(4), expresses the conclusion that there is no objection to receiving such entries or transactions 'provided the practical inconvenience of producing on the stand the numerous other persons thus concerned would in a particular case outweigh the probable utility of doing so.' More specifically, it is said in Section 1707: 'The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principle. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy. There is a Necessity; the calling of all the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a Circumstantial Guarantee of Trustworthiness; for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.'

Wigmore observes in Section 1530(7) that hospital records have been frequently excluded, but points out that: 'In view of special circumstances which involve their preparation and use, they have in some states been given (as they should be) by legislation a special status and thus form an additional exception of their own.'

The rule of admissibility for a record of this character seems to be provided for in the American Law Institute's Model Code of Evidence, Rules 514 and 516, which, however, has not been adopted in Kentucky.

We conclude that an authenticated hospital chart is admissible in evidence where the party offering it shows the necessity of admitting the record without requiring the person or several persons who made it, or caused it to be made, to testify. It should be further shown that a person or persons having knowledge of the facts, events or conditions made the record contemporaneously, or within such time thereafter as to be part of the transaction, in accordance with the ordinary and regular course of hospitalization, or transmitted the facts for inclusion in the record by one serving in the capacity of an amanuensis, or in line of duty. The court should exercise care, however, to see that there was no contemplative motive for falsification, and that purely self-serving declarations and all extraneous matters are excluded. Annotations, 75 A.L.R. 378; 120 A.L.R. 1124; 32 C.J.S., Evidence, § 728.

Under this ruling, it was error to exclude the hospital records, although we do not pass upon any particular item or entry, for the record are not before us.

2. There are other questions raised by the appellants concerning the admissibility or rejection of evidence. They are of less importance and perhaps some of them will not arise on another trial; therefore, we do not consider them.

3. In order to avoid a continuance, the plaintiff consented that the affidavit of one of the defendants as to what two absent witnesses would testify, if present, should be read as their depositions. Civil Code of Practice, Sec. 315. After an exchange of comment before the reading of the testimony to be thus presented, in which counsel for the plaintiff referred to it as 'this affidavit' and counsel for the defendants as 'the deposition,' defendant's counsel asked the court for an admonition that it should be considered as the deposition of the witnesses. The court responded: 'No, this is the affidavit and the jury will consider it the same as if the witnesses were present and testified in court.' In the argument, when the defendant's attorney referred to the testimony of one of the absent witnesses as her deposition plaintiff's attorney objected to the statement and reference to a 'deposition,' adding, 'They made an affidavit.' The ruling of the court was, 'I will hold that it is an affidavit.' In the conclusion argument, plaintiff's attorney said: 'It is not enough to knock this man and split his head open, but they have got to show...