Wright v. American General Life Ins. Co.

• Decision Date: 07 December 1982
• Docket Number: No. 8117SC1343,8117SC1343
• Citation: 59 N.C.App. 591,297 S.E.2d 910
• Parties: Shirley Hayes WRIGHT v. AMERICAN GENERAL LIFE INSURANCE COMPANY.
• Court: North Carolina Court of Appeals

Page 910

297 S.E.2d 910

59 N.C.App. 591

Shirley Hayes WRIGHT v. AMERICAN GENERAL LIFE INSURANCE COMPANY.

No. 8117SC1343.

Court of Appeals of North Carolina.

Dec. 7, 1982.

Faw, Folger, Sharpe and White by W. Thomas White and T. Richard Pardue, Jr., Mount Airy, for plaintiff-appellant.

Gardner, Gardner, Johnson, Etringer & Donnelly by G.L. Donnelly, Sr., Mount Airy, for defendant-appellee.

WHICHARD, Judge.

Plaintiff's contentions relate primarily to evidentiary rulings. We find no error.

Plaintiff first contends the court erred in admitting the deposition of a psychiatrist at a hospital in Virginia who had treated decedent for withdrawal from alcohol use. She argues that defendant failed to establish any of the conditions for use of depositions in court proceedings provided by G.S. 1A-1, Rule 32(a)(4).

G.S. 1A-1, Rule 32(a)(4) (Cum.Supp.1981) provides, inter alia, that a deposition may be used in court proceedings when "the party offering the deposition has been unable to procure the attendance of the witness by subpoena." G.S. 8-83(2) provides that a deposition may be read at trial "[i]f the witness is a resident of ... another state, and is not present at the trial." Insofar as it does not conflict with G.S. 1A-1, Rule 32, G.S. 8-83 remains in effect. See Nytco Leasing v. Southeastern Motels, 40 N.C.App. 120, 124-26, 252 S.E.2d 826, 830 (1979).

While the record does not clearly establish that the witness in question resides in Virginia, it contains indications that he does, and it presents no evidence to the contrary. Further, it is uncontroverted that at time of trial the witness was licensed to practice medicine in Virginia, had privileges to practice in the Virginia hospital where decedent had been treated, had offices in Virginia, and was then present in Virginia. Counsel for defendant represented to the court that at the time the deposition was taken the witness had "indicated that he would not care to come to North Carolina to testify voluntarily." Counsel also represented that he had written the witness requesting his voluntary attendance at trial, and that the witness had replied that counsel "already ha[d] the record and [his] deposition so [he felt] that [he] would have little to offer as a witness."

The foregoing sufficed to support the court's findings and conclusions that the witness was employed at a Virginia hospital, had his office in Virginia, and resided in Virginia; that the witness had declined to appear voluntarily to testify at trial; that counsel had been unable to procure the voluntary appearance of the witness; that the witness was not within the jurisdiction of the court and thus was not amenable to service of its process; and that defendant had been unable to procure attendance of the witness by subpoena. These findings and conclusions in turn sufficed to establish that "[n]othing else appearing, [the witness] being beyond the reach of a subpoena, the defendant [could] take his deposition for use at the trial." Transportation, Inc. v. Strick Corp., 291 N.C. 618, 624, 231 S.E.2d 597, 601 (1977). Given the facts established and found, defendant's failure formally to subpoena the witness is immaterial. "The law will not require a vain thing." R.R. v. R.R., 240 N.C. 495, 515, 82 S.E.2d 771, 785 (1954). See also State v. Dawkins, 262 N.C. 298, 301, 136 S.E.2d 632, 635 (1964). Defendant sufficiently established "that a reasonable effort [had] been made to ... get [the witness] to court," W. Shuford, North Carolina Civil Practice and Procedure § 32-8 (2d ed. 1981), and under the circumstances presented it was not error to admit the deposition.

Plaintiff next contends the court erred in admitting the deposition testimony of this witness regarding decedent's drinking habits. The witness was asked, "What information, if any, concerning [decedent's] prior drinking habits did you obtain from [decedent] himself?" He answered, over objection:

Okay, all that I can do, I can't say that I remember specifically asking over what period of months or years that you have used alcohol and how but the way that I dictated this about all that I got out of him and the other people was that this was an episode of some few months and if I asked it I didn't record it so--

Plaintiff's counsel lodged a further objection, which was overruled, and the answer continued:

That is all that I can say is five to eight fifths of booze for the past few months and evidently I was not impressed with anything else because I was not suspicious enough to write down, "In spite of what they say I suspect otherwise," whatever, so I can do no more than say that I go by what I wrote down.

Plaintiff argues this testimony should not have been admitted because (1) the witness had no independent recollection of decedent's drinking habits, and (2) defendant failed to lay a proper foundation for introduction of the medical records from which the witness derived the information to which he testified. In light of our holding, infra, that the medical records themselves were properly admitted, we perceive no possible prejudice to plaintiff in the admission, prior to introduction of the records themselves, of this testimony regarding information derived from the records.

Plaintiff next contends the court erred in admitting the admission and discharge summaries from the Virginia hospital. She argues that they constituted hearsay evidence, and that defendant failed to lay a proper foundation for their introduction pursuant to the business records exception to the hearsay rule.

Hospital records are properly admitted as exceptions to the hearsay rule when they qualify as entries in the regular course of business. E.g., Sims v. Insurance Co., 257 N.C. 32, 35, 125 S.E.2d 326, 328-29 (1962). Business records are admissible if the entries are made in the regular course of business at or near the time of the events recorded, are original entries, are based on the personal knowledge of the individual making the entries, and are authenticated when introduced by a witness familiar with the system under which they were made. Sims, supra, 257 N.C. at 35, 125 S.E.2d at 329; Plastics, Inc. v. Mize Company, 58 N.C.App. 135, ---, 293 S.E.2d 219, 221 (1982); 1 Brandis on North Carolina Evidence § 155 (2d rev.ed. 1982).

The record establishes that the deposed medical witness was decedent's treating physician; that he had practice privileges in the hospital from which the admission and discharge summaries came; that he dictated the admission summary on the date of decedent's admission to the hospital; that the admission summary was prepared under his direction and signed by him; that he identified the discharge summary as a part of the hospital's records; that the discharge summary was obtained by him and prepared at his direction; and that he testified to these matters in his deposition. The summaries thus were properly admitted under the business records exception to the hearsay rule.

Plaintiff further contends that, even if these records were generally admissible, they contained statements by plaintiff and her father relating to decedent's drinking habits which should have been excluded as "hearsay on hearsay." "Anything that a party to the action has done, said or written, if relevant to the issues and not subject to some specific exclusionary statute or rule, is admissible against him as an admission." 2 Brandis on North Carolina Evidence § 167, p. 6 (2d rev. ed. 1982). See, e.g., Ballance v. Wentz, 286 N.C. 294, 301-02, 210 S.E.2d 390, 394-95 (1974); Board of Education v. Lamm, 276 N.C. 487, 491, 173 S.E.2d 281, 284 (1970). The statements attributed to plaintiff were thus admissible as admissions of a party. The statements attributed to plaintiff's father were admissible for the purpose of showing, in part, the basis for the deposed medical witness' diagnosis.

A physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence.... If his opinion is admissible the expert may testify to the information he relied on in forming it for the purpose of showing the basis of the opinion.

State v. Wade, 296 N.C. 454, 462, 251 S.E.2d 407, 412 (1979). This medical witness testified that decedent "was admitted primarily on the information gained when [plaintiff] and [her father], and myself were in the ... room." The court on two occasions instructed the jury that the statements of plaintiff's father were to be considered only insofar as they tended to show the basis for this medical witness' diagnosis, and that they were not to be considered as substantive evidence. The statements, with these...