Globe Indemnity Co. v. Reinhart

⁴⁴² Digges, J., delivered the opinion of the Court. The appellee (plaintiff below) obtained a judgment against the appellant in the Circuit Court for Allegany County, from which judgment this appeal is prosecuted. The cause of action is an accident policy insuring Boyd A. Beinhart, the husband of the appellee. The policy, which is the contract sued on in this case, is as follows: “Globe Indemnity Company of New York. “Policy No. XO-103012.

Class No. One. “Single Indemnity, $ 7,500.00. “Double Indemnity, $15,000.00. “Hereby insures the person named in answer 1 of ths schedule of warranties endorsed hereon against loss caused (1) directly and exclusively by bodily injury sustained solely through accidental means, or caused (2) by any physical or mental disease, subject to the terms, provisions and limitations hereinafter contained. “Section 1. Accident Indemnity. “(a) If such injury, within 12 months from date of accident causes the insured to sustain a loss enumerated in this section, the company will pay the sum specified for such loss as follows: Life, $7,500. “6. The sum specified for loss of life, and any indemnity that has accrued and may be due when such loss occurs, is payable to the beneficiary named in the schedule of warranties or to such other beneficiary, if surviving, as the insured may hereafter designate, and the company accept by endorsement hereon; otherwise to the insured’s administrator or executor. Any other indemnity is payable to the insured. “11.

This policy does not cover loss caused by any means, injury or disease which, had it been used or self-inflicted by the insured while in possession of all mental faculties, would be deemed intentional. “In witness whereof, the Globe Indemnity Company of New York has caused this policy to be signed by its president and its secretary, but the same shall not ⁴⁴³ be binding upon the company until countersigned by a duly authorized representative of the company. “Geo. W. Labor, “A. Duncan Beid, “President. “Secretary. “Countersigned at Cumberland, Maryland, this 13th day of March, 1913. “Boyd A. Beinhart, “Authorized Bepresentative. “Examined: A. N. “Schedule of Warranties. “1. My full name is Boyd A. Beinhart. Color, White. “14.

I designate as beneficiary Ettchen Wellington Beinhart, Belationship, Wife, of Cumberland, State of Maryland. “Globe Indemnity Company. “Valuable — Do Not Destroy. “It is hereby agreed that Policy No. X0-103012, issued to Boyd A. Beinhart is continued in force for twelve months from the 12th day of March, 1925, noon, standard time, subject to the payment of Seventy-five Dollars ($75.00) premium and to all the terms and provisions of said policy. Not valid until countersigned by a duly authorized representative of the company. “Countersigned at Newark, N. J., this 12th day of March, 1925, by I. E. Levy. “Boyd A. Beinhart, “Authorized Bepresentative. “A. Duncan Beid, “President and General “Manager.” The undisputed facts disclosed by the record may be with substantial accuracy thus stated: That Boyd A. Reinhart, about forty-five years of age, after spending about two weeks in the Laurel Sanitarium, on November 22nd, 1925, entered the Allegany Hospital in Cumberland, suffering from alcoholism. That on November 25th, about noon, he was visited ⁴⁴⁴ in his room by Dr. Everhart, his attending physician, and was, in the doctor’s belief, clear mentally and fully recovered from his intoxication. That he was seen by the witness William Banks, who was the elevator man at the hospital, about a quarter to seven o’clock on the evening of the same day, standing in the door of his room, in a bathrobe; that about fifteen minutes thereafter he was found lying in the concrete alley, directly beneath the window of the room which he occupied, in a pool of blood, with both femurs fractured, the thigh-bones projecting from the flesh, the left bone badly shattered.

That upon being discovered he was taken immediately to the operating room of the hospital, administered anesthetics, and the fractures reduced as far as possible. That after the operation he was taken to his room, suffering from shock and great pain, and according to the testimony of the night nurse, who was with him the nights of the 25th, 26th and 2Yth, was delirious during the time she was with him. That he died on the morning of the 28th. That the door of his room, in which he was seen standing shortly before seven o’clock, was about six feet from the window; that the distance from the floor to the top of the window sill was two feet ten inches, the width of the window being two feet eight inches; that the wall from the floor to the top of the window sill was practically perpendicular, the window sill sloping from its top outward towards the alley.

There are thirteen exceptions in the record, twelve to rulings on evidence and one to the ruling on the prayers. Disposing of the exceptions to the evidence, we find no error in the rulings on the first, second, fourth and twelfth exceptions, none of which were argued or pressed by the appellant. Those upon which the appellant relies are the third, relating to the admissibility of the hospital chart, and the group of exceptions, from the fifth to the eleventh, inclusive, relating to questions asked the medical expert witness, Dr. Boon. We will dispose of these in the order named.

The third exception arose in the following manner. The ⁴⁴⁵ witness Miss McElfish was on the stand, she being the chart nurse of the hospital assigned to the hall upon which the room occupied by Mr. Reinhart was located. It was her .duty to make the entries which constituted or made up the chart, which she did from information orally furnished her by the attendant nurse. She testified that she made certain entries upon the chart, covering November 25th, the day of the accident, from information given her by Miss Gardner, the nurse who was in attendance upon Mr. Reinhart during that day; that she correctly and accurately recorded the information so given her; and it appears that Miss Gardner, the attendant nurse on that day, was out of the state, inaccessible and beyond the process of the court, at the time of the trial.

It was further shown that the chart nurse made the entries on the day and at the time the information was furnished her by the attendant nurse. This chart is not reproduced in the record, but it is stated in the brief of counsel for the appellant that it was offered for the purpose of showing that at three o’clock on November 25th Mr. Reinhart was delirious. It was testified by the attendant physician, Dr. Everhart, that he saw Mr. Reinhart on that day about twelve o’clock, talked with him for fifteen or twenty minutes, and believed him at that time to be clear mentally and fully recovered from his intoxication. It is therefore'apparent that if it could be shown that, although the patient was clear mentally at about twelve o’clock, at three o’clock on the same day he was delirious, it would be a material fact to which the jury would be entitled in determining whether at seven o’clock on the same day, the time of the accident, Mr. Reinhart was or was not in a mentally sound condition.

This exception, therefore, presents a direct inquiry, and requires the decision of this court upon the question of the admissibility of the hospital chart, without having as a witness the person who had knowledge of the truth of the facts therein recorded. The hearsay rule generally prevents a witness from testifying to an entry unless the witness so testifying has per ⁴⁴⁶ sonal knowledge of the truth of the matters recorded. This rule has been frequently enunciated by this Court, the latest expression being contained in the case of Cohen v. Bogatzky, 149 Md. 134 . In that case the Court, speaking through Judge Offutt, referring to a book of account, said: “The general rule in regard to the admissibility in evidence of such a book is that, before it is admitted or used for any purpose, testimony should be given authenticating it, showing it to be a book of original entries kept for that purpose, that the entries were true and correct and reasonably contemporaneous with the transaction.

Jones on Evidence, par. 573. And it should appear that the person making the entries had personal knowledge of the facts recorded, or his testimony should be supported by that of some person who did have such knowledge.” There are, however, certain exceptions to this rule, based upon the circumstantial guarantee of trustworthiness of the record itself, and upon the inconvenience and well-nigh impossibility of producing Avitnesses who could from their oavu personal knowledge testify to the truth of the entries made. Among the reasons for excluding hearsay testimony is the inherent uncertainty of its reliability, and the fact that the person stating the thing to be a fact is not under oath and subject to cross-examination. The purpose of presenting evidence in support of a contention is to establish facts from which reasonable minds form conclusions and render judgments.

In a majority of eases these facts are established by testimony of witnesses who have personal knowledge upon the subject, and this testimony is received for the reason that it has the guarantee of reliability. The question here presented is whether evidence represented by the hospital chart contains a sufficient guarantee of its truthfulness. We are of the opinion that it does. It is a record required by the hospital authorities to be made by one whose duty it is to correctly make the entries therein contained.

So far as the hospital is concerned, there could be no more important record than the chart which indicates ⁴⁴⁷ the diagnosis, the condition, and treatment of the patients. This record is. one of the important advantages, incident to hospital treatment, for it not only records for the use of the physician or surgeon what he himself observes during the time he is with the patient, hut also records at short intervals the symptoms, condition, and treatment of the patient during the whole time of the physician’s absence. Upon tbis record the physician depends in large measure to indicate and guide him in the treatment of any given case. Long experience has shown that the physician is fully warranted in depending upon the reliability and trustworthiness of such a record.

It is difficult to conceive why this record should not he reliable. There is no motive for the person, whose duty it is to make the entries, to do other than record them correctly and accurately. On the other hand, there is the strongest reason why he should: First, because of the great responsibility, he knowing that the treatment of the patient depends largely upon this record, and if it be incorrect it may result, and probably will result, in the patient’s failure to receive proper surgical or medical treatment, which failure might be followed by serious consequences, or even death. Second, the entrant must realize and appreciate that his position is dependent upon the accuracy with which the record is made.

Third, as was stated by Tindall, C. J., in Poole v. Dicas, 1 Bing. N. C. 649: “It is easier to state what is true than what is false; the process, of invention implies trouble in such a case unnecessarily incurred.” What we have said applies to a case when the person who made the entries on the chart is dead, insane, or inaccessible; and it applies with equal force to the person having personal knowledge of the truth of the entries, and who, at the time when such facts were fresh in his mind, furnished them to the person who recorded them, and who is at the time of the trial inaccessible by reason of death, insanity, or being beyond the jurisdiction of the court. In the present case Miss MeElfish made the entries contained in the chart, and to this she testified; and while she had no ⁴⁴⁸ personal knowledge of the truth, of the facts recorded, they were given to her by Miss Gardner, the nurse attending Mr. Reinhart during the day of November 25th, 1925, practically simultaneously with the acquisition of those facts by Miss Gardner. All of the things which we have said, which would constitute a guarantee that Miss McElfish correctly recorded the facts furnished her by Miss Gardner, apply with equal force to guarantee the truth of the facts so furnished.

It was her duty to obtain these facts from which the record was made. They were obtained in the regular course of her employment. They were furnished to the chart nurse practically contemporaneously with her receiving the knowledge. She was cognizant of the necessity for their truth and accuracy, and of the responsibility which rested upon her; and in her case also there was the knowledge that her position depended upon the fidelity and accuracy with which she discharged her duties.

It is clear that every reason exists why the hospital authorities and those connected with it should require that records of this character should be correct and accurate. In this day of advancement in medical science and the diagnosis and treatment of disease, hospital staffs include many specialists in different branches of the medical profession; so that it frequently happens that when a patient enters a hospital he is examined by a number of these specialists; a heart specialist will examine him to detect heart trouble, a lung specialist for lung trouble, a throat, eye, and ear specialist for those affections, and so on, to constitute a full and thorough examination of the whole body and all of its organs. It is the rule and practice for these physicians to dictate their findings to stenographers, who in turn convey this information to the person whose duty it is to keep the chart or record of the particular patient’s case; and while, as we have said, this chart contains evidence which is as reliable and trustworthy as any evidence upon which men act in the most serious affairs of life, yet if it were necessary, in order to introduce the evidence contained in the chart, that each one of the specialists who examined ⁴⁴⁹ the patient, the result of whose examination made up the chart, were required to be present in court and testify to the truth of the particular portion of the chart made as a result of his examination, there would be a practical denial by the courts of the use of such evidence as contained in the charts. There seems to be no good reason why, the person who made the chart having given evidence of its authenticity, the method by which it was made up, the chart itself should not be admitted as evidence of the truth of the facts therein recorded.

The decisions of the courts are not harmonious on this subject, but the principle which we have adopted finds support in Fielder v. Collier, 13 Ga. 499 ; Nelson v. First Nat. Bank, 16 C. C. A. 425 , 69 Fed. 805 ; Continental Nat. Bank v. First Nat. Bank, 108 Tenn. 374 ; United States v. Cross, 20 D. C. 379; Chisholm v. Machine Co., 160 Ill. 101 ; Donovan v. Boston & Me.

R. Co., 158 Mass. 450 ; Northern Pac. R. Co. v. Keyes, 91 Fed. 47 ; United States v. Venable Construction Co., 124 Fed. 267 ; Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38 . In Wigmore on Evidence, vol. 2, sec. 1530, p. 1895, it is said: “Where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the present exception, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so.

Why should not this conclusion be accepted by the courts ? Such entries are dealt with in that way in the most important undertakings of mercantile and. industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise; nor does the practical impossibility of obtaining constantly and permanently the verification of every employee affect the trust that is given to such ⁴⁵⁰ books. It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice.

When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court room.” In the case of Mt. Vernon Co. v. Teschner, 108 Md. 158 , in dealing with the question of the admissibility of the New York Journal of Commerce as evidence of the market value of a commodity, the Court, speaking through Judge Boyd, after quoting from Judge Miller’s opinion in the case of Munshower v. State, 55 Md. 24 , wherein Gruber’s Almanac was admitted in evidence to prove the hour the moon rose, said: ‘‘Cliquot v. United States, 3 Wall. 114 , is a leading ease on the general subject. * * * The Supreme Court in passing on the admissibility of the evidence referred to the statement in Lush v. Druse, 4 Wend. 313 , that ‘the proof was by a witness who had inquired of merchants dealing in the article, and examined their books. This, uncontradicted, was sufficient; and the Supreme Court then said: ‘With this ruling we are satisfied. While courts, in the administration of the law of evidence, should be careful not to open the door to falsehood, they should be equally careful not to shut out truth.

They should not encumber the law with rules that will involve labor and expense to the parties and delay the progress of the remedy — itself a serious evil— without giving any additional safeguard to the interests of justice.’ ” In Hall v. Trimble, 104 Md. 317 , the sixth, seventh and eighth exceptions related to the refusal of the court to admit in evidence three records of the Baltimore City Hospital, or to allow Dr. A. W. Deal to testify as to certain facts connected with the keeping of those records. .The purpose of introducing in evidence these entries was to show that Hall had been treated in the hospital on the 14th, 19th, and 25th days of September, 1903. This Court, in affirming the ⁴⁵¹ action of the lower court, said: “It was shown, and not denied, that he had been treated at the city hospital for the inj uries complained of. That he was treated on the