Thomas v. Owens

Eldridge, J., delivered the opinion of the Court. This case presents issues concerning the propriety of admitting certain documentary and testimonial evidence, and the failure of the trial court to issue a “missing witness rule” instruction. On the afternoon of April 6, 1971, Norris H. Owens, the plaintiff-appellee, was driving north on U. S. Route 301 in Prince George’s County, Maryland. After the car in front of him stopped for a school bus which was discharging passengers in one of the southbound lanes, Owens brought his car to a halt.

A few moments later he was struck in the rear by a vehicle owned and operated by the defendant-appellant, George Edward Thomas. Owens filed suit in the Circuit Court for Prince George’s County, seeking damages for the personal injuries sustained ⁴⁴⁴ in the collision. At the trial, the court (Meloy, J.) directed a verdict in favor of Owens on the issue of liability, and the jury assessed Owens’s damages at $28,000. From a final judgment in favor of Owens for this amount, Thomas has appealed.

In this court, Thomas contends: (1) that the trial court erred in allowing into evidence an invoice “without requiring that it be presented through proper testimony”; (2) that the trial court erred in not granting the defendant’s request to give a “missing witness rule” instruction in connection with plaintiff’s failure to produce a particular physician as a witness; and (3) that the trial court erred in refusing to strike the testimony of a chiropractor because the treatment which he testified to providing allegedly exceeded his area of expertise. (1) Thomas asserts that the introduction of an invoice or bill over his objection constituted a violation of the hearsay rule. Owens testified that the day after the accident he was examined and treated at the United States Public Health Service Hospital in Baltimore, Maryland, and that he continued to receive treatments there “roughly every thirty days,” although the total number of treatments was not specified. He further testified to having received a bill from the United States Department of Health, Education and Welfare for the treatment rendered by the Public Health Service Hospital.

The bill was for $234.00, and was thereafter marked for identification. 1 Owens next produced as a witness Dr. Stuart H. Brager whom he had consulted for an examination and evaluation to be used at trial. Over defendant’s objection Dr. Brager ⁴⁴⁵ testified that the Public Health Service Hospital bill, according to Baltimore City medical standards, was fair and reasonable for the hospital visits and treatments. The plaintiff then offered into evidence the bill itself, claiming that it was admissible because Dr. Brager’s testimony furnished independent evidence that the charge set forth was reasonable. The defendant objected on the ground that the bill was hearsay, but the court admitted the bill into evidence. 2 In Maryland, before a medical bill can be admitted to prove the reasonableness of the amount charged, there must be other evidence that the charge set forth in the bill was reasonable.

Brooks v. Fairman, 253 Md. 471, 475-476 , 252 A. 2d 865, 867-868 (1969); Metropolitan Auto Sales v. Koneski, 252 Md. 145, 154 , 249 A. 2d 141, 146 (1969); Kujawa v. Baltimore Transit Co., 224 Md. 195, 208 , 167 A. 2d 96, 102 (1961); Wash., B. & A. R. Co. v. Kimmey, 141 Md. 243 , 245 118 A. 648 (1922). The requirement of the cited cases concerning other evidence of reasonableness was met in the instant case, for Dr. Brager testified that the charge by the Public Health Service Hospital was reasonable. However, Thomas contends that introduction of the invoice as evidence of the reasonable value of services provided constituted inadmissible hearsay. 3 Thomas claims that the invoice did not come within the business records exception to the hearsay rule because the requirement of the ⁴⁴⁶ business records statute that the writing be made in the regular course of business was not satisfied here by testimonial evidence. 4 An invoice is hearsay evidence when offered to prove the reasonableness of the charges stated, as well as any other factual assertions expressly or impliedly contained therein. Thus, in Weishaar v. Canestrale, 241 Md. 676, 686 , 217 A. 2d 525, 531 (1966), the Court upheld the exclusion of an invoice which was offered as the only evidence to prove the value of cargo destroyed in an accident on the ground that its admission would have violated the rule against hearsay. 5 However, despite the hearsay character of the medical invoice, under the circumstances of this case we believe that the invoice was properly admitted.

In Morrow v. State, 190 Md. 559 , 59 A. 2d 325 (1948), the Court of Appeals considered the admissibility of a sales slip offered to prove the statements it contained. In that case, Morrow was tried on a charge of bookmaking alleged to have taken place in Maryland on August 9, 1947. Although he did not testify in his own behalf, Morrow attempted to prove through other witnesses that he was not in Maryland on that date. In support of Morrow’s alibi, George Blake, a defense witness, testified that he accompanied Morrow to Union, South Carolina, on August 7, 1947.

Blake testified that while in Union they had their car repaired on August 9, and he identified a sales slip which he said was obtained on the trip. The sales slip was dated August 9, 1947, and itemized a purchase of oil and spark plugs from a Union, South ⁴⁴⁷ Carolina, service station. The trial court refused to admit the sales slip into evidence, and the Court of Appeals reversed. Initially, Morrow v. State, supra, seemed to hold that the document was admissible on the theory that it was offered only to corroborate other testimony that Morrow had made a purchase in Union on August 9, for which he had received a sales slip. 190 Md. at 562 .

However, the Court then offered another basis for the admission of the sales slip. Turning to the business records act, Code (1974), § 10-101 of the Courts and Judicial Proceedings Article, formerly Code (1939), Art. 35, § 68, Judge Henderson stated for the Court (id. at 562-563): “The State contends that there was no foundation laid, in that there was no proof of regularity or business practice. We think no elaborate foundation is necessary to support an inference that the vendor, in giving a duplicate sales slip to his customer and keeping another for his record, was pursuing a regular business practice. It is a common practice for merchants to make out sales slips from which to post a ledger.

To prove the practice in this particular case would probably require the testimony of out-of-state witnesses.” While a proper foundation must be laid for the introduction of evidence under the business records statute, Snyder v. Stouffer, 270 Md. 647, 652 , 313 A. 2d 497, 500 (1974); Hyman v. State, 4 Md. App. 636, 642 , 244 A. 2d 616, 618 (1968), as Morrow v. State indicates it is not always necessary that the foundation consist of testimonial evidence. The business records statute was enacted to liberalize the common-law rules, Burroughs Int’l Co. v. Datronics, 254 Md. 327, 347 , 255 A. 2d 341 (1969), and it “created a broad exception to the hearsay rule,” Frush v. Brooks, 204 Md. 315, 320 , 104 A. 2d 624 (1954). “The rule in Maryland is that business records may be introduced, even though hearsay in nature, when the entry meets the test of ‘necessity and circumstantial guaranty of trustworthiness.’ ” ⁴⁴⁸ Burroughs Int'l Co. v. Datronics, supra, at 348. Accordingly, the statute demands only that the writing be “made in the regular course of business” and at the time or within a reasonable time after the' event of which the writing is a memorandum or record. While normally this foundation is shown by testimonial evidence, the statute sets forth no such requirement.

At times a court may properly conclude from the circumstances and the nature of the document involved that the proffered document was made in the regular course of business. Levine v. Beebe, 238 Md. 365, 370 , 209 A. 2d 67 (1965); Morrow v. State, supra; see also Tellez v. Canton Railroad Co., 212 Md. 423, 432 , 129 A. 2d 809 (1957); Gordon v. State, 14 Md. App. 245, 257 , 286 A. 2d 833, 841 (1972). Turning to the present case, issuing medical invoices which set forth charges for services rendered is a procedure normally pursued by hospitals or their representatives. In this case, moreover, the bill was sent by a government official pursuant to a scheme recognized by statute.

Section 2651 of 42 U.S.C. provides for the Department of Health, Education and Welfare to recover for services furnished to patients in Public Health Service Hospitals from parties who may be liable for medical expenses incurred by the patients. The section necessarily contemplates, as a matter of regular business, communications or invoices from the Department itemizing the treatments and expenses incurred. Under these circumstances, we believe that there is a sufficient basis for concluding that the invoice was made in the regular course of business, and that it was sufficiently reliable and trustworthy to have been admitted. As previously mentioned, Morrow v. State also seemed to rely on an alternative theory for holding the sales slip admissible.

While not at all clear, the opinion appeared to suggest that the document was properly admitted for the “limited purpose” of corroborating independent testimony in the case. Thus, the Court stated ( 190 Md. at 562 , emphasis supplied): “We think the slip was admissible for the limited ⁴⁴⁹ purpose for which it was offered. It was offered in corroboration of Blake’s testimony that the accused made a purchase in Union upon August 9th, and that he saw the slip delivered.” As Wigmore explains, there was at one time a broad exception to the hearsay rule for corroborative evidence, and it was allowable to use hearsay evidence to corroborate and supplement previous testimony on a disputed issue in a case. 5 Wigmore, Evidence § 1364 at 17 (3d ed. 1940). This rule existed in a limited form until the end of the 18th century, permitting a witness’s own prior consistent statements to be used to corroborate his testimony, even where his credibility was not attacked.

Id. at 17-18. See also the discussion in McAleer v. Horsey, 35 Md. 439, 465 (1872). Under present Maryland law, corroborating evidence which would otherwise be deemed hearsay and which would not fall within any recognized exception to the hearsay rule, can normally be used only for the non-hearsay purpose of rehabilitating a witness whose credibility has been attacked. American Stores Co. v. Herman, 166 Md. 312, 316 , 171 A. 54 (1934); Cross v. State, 118 Md. 660, 671 , 86 A. 223 (1912); Gill v. Staylor, 93 Md. 453, 468 , 49 A. 650 (1901); Bloomer v. State, 48 Md. 521, 537 (1878); McAleer v. Horsey, supra; Stocksdale v. Cullison, 35 Md. 322, 326 (1872); Washington Fire Insurance Co. v. Davison and Symington, 30 Md. 91, 105 (1869); Cooke v. Curtis, 6 H. & J. 93, 94 (1823); Harris v. State, 11 Md. App. 658, 661 , 276 A. 2d 406 (1971); McCormick, Evidence § 49, 108, n. 18 (1954). 6 However, with respect to invoices and similar documents, there appears to have remained in a few jurisdictions the view that while such hearsay evidence is not independently admissible to prove the factual assertions contained in the writing, it may be used to corroborate independent testimony to the same effect.

Thus, in Pacific Gas & Elec. ⁴⁵⁰ Co. v. G. W. Thomas Drayage & R. Co., 69 Cal. 2d 33 , 69 Cal. Rptr. 561, 567 , 442 P. 2d 641, 647 (1968), Chief Justice Traynor stated for the Supreme Court of California: “Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or that the charges were reasonable. ... If, however, a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony . . ., and if the charges were paid, the testimony and' documents are evidence that the charges were reasonable.” In Morrow v. State Judge Henderson seemed to recognize the same limited exception to the hearsay rule. See