271 Mass. 27 | Mass. | 1930
These cases arose out of a collision on August 31, 1926, between a motor truck of the defendant and a sedan belonging to Meltzer and driven by Clark. The jury, in answer to issues submitted to. them, found that the collision was due to the- carelessness of Clark, who at the time was not the agent of Meltzer; was the cause of damage to Meltzer’s car in the amount of $800; and was not due to carelessness of the driver of the truck. There was conflict in the testimony of witnesses with regard to the presence or absence of an odor of liquor upon Clark’s breath. The trial judge refused to cause the words “marked odor alcohol on breath” to be omitted from a record of the Boston City Hospital relating to Clark put in evidence by the plaintiffs; and also refused to instruct the jury, as the plaintiffs requested, that the statement with regard to the odor on Clark’s breath could be considered only “upon and in connection with his physical condition and it has no reference or connection with the liability or cause of the accident” and “is not evidence and does not prove that Clark was operating at the time of the accident under the influence of liquor.” Clark, though a witness, was not asked, nor did he testify, about any use of liquor by him on the day of the accident. He was taken to the hospital immediately after the collision.
The plaintiffs contend that there was error in admitting the statement in the hospital record and in refusing to instruct as requested. No other matter is argued.
It was decided in Leonard v. Boston Elevated Railway, 234 Mass. 480, that it could not be said that the words
Apart from statutory authority such a record as was here put in evidence is hearsay and inadmissible. Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359. By St. 1905, c. 330, hospitals supported in whole or in part by the Commonwealth or a municipality, incorporated hospitals offering treatment free of charge or incorporated hospitals conducted as public charities were required to “keep records of the cases under their care and the history of the same in books kept for that purpose” and such records were made “admissible as evidence in the courts of the Commonwealth as to all matters therein contained.” The case last cited held that the statute did not apply to records kept before the date of its passage, and by St. 1908, c. 269, the Legislature amended it to include records kept prior to April 25, 1905. Apparently the Legislature felt that entries were made which ought not to be taken in evidence; and St. 1912, c. 442, amended the earlier act by limiting the requirement to keeping “records of the treatment of the cases under their care and the medical history of the same” (inserting the words here italicized); and by striking out from the enactment giving the records admissibility in evidence the words “as to all matters therein contained” and inserting in their place “so far as such
In Raymond v. Flint, 225 Mass. 521, Glass v. Metropolitan Life Ins. Co. 258 Mass. 127, Whipple v. Grandchamp, 261 Mass. 40, Unterberg v. Boston Elevated Railway, 266 Mass. 10, Souza v. Metropolitan Life Ins. Co. 270 Mass. 189, hospital records dealing with the history and treatment of the case were considered upon the questions of liability arising in the proceedings; and in Bilodeau v. Fitchburg & Leominster Street Railway, 236 Mass. 526, 540, it was held that too strict a rule was imposed in confining consideration of an entry in a hospital record, “Vomited fluid twice resembling coffee grounds & had an odor of whiskey,” simply to the treatment and medical history. This court, in the case last cited, held that the fact of the presence of an odor of whiskey in the vomitus of the injured man could be considered in deciding whether the patient had used whiskey shortly before the accident out of which the action arose; and, in substance, decided that facts shown by evidence of entries in hospital records admissible properly under the statute may be considered upon any issue to which they are relevant under the rules of law. The words of the
It follows that the plaintiffs’ requests for instructions were denied properly. Adequate instructions, to which no exceptions were claimed, were given to the jury in the subject matter to which the entry admitted related.
Exceptions overruled.