Halliday v. Butt
40 Ala. 178
Ala.
1866
Check Treatment
JUDGE, J.

1. Tbe general rule of tbe common law is, tbat a party’s books are not admissible in evidence for bim; tbey are considered as hearsay, of bis own fabrication. — 1 Phil. Ev. C. & H.’s Notes, 377. This rule of tbe common law, whatever may be tbe decisions of other States upon tbe question, is recognized and enforced in this State. — Moore v. Andrews & Brother, 5 Porter, 107; Nolly v. Holmes, 3 Ala. 642. But, by section 2298 of tbe Code, it is provided, tbat “ tbe original entries in tbe books of a physician are evidence for him, in all actions brought for tbe recovery of his medical services, tbat tbe service was rendered, unless tbe defendant, in open court, deny upon oath tbe truth of such entries ; but be is required to prove tbe value of such services,” &c.

This statute being in derogation of tbe common law, we cannot concur with tbe court below in tbe construction, tbat it gives to tbe physician suing tbe right to identify tbe entries relied on, by bis own oath. To make such entries legal evidence, under tbe section of tbe Code above quoted, tbey must be identified by competent testimony. The right of tbe defendant to deny upon oath their truth does not confer upon tbe plaintiff tbe right to swear to their identity; and in permitting tbe plaintiff thus to testify, tbe cbcuit court erred.

2. Tbe admissibility of such entries in evidence, depends upon tbe question of identity, which is a preliminary ques*182tion to be determined by tbe court. Where the admission of evidence to the jury depends upon the proof of some fact as a foundation, such fact must be shown to the court. Paysant v. Ware & Baringer, 1 Ala. 161. But this preliminary proof of identity, given before the judge, does not relieve the party offering the entries from the necessity of proving them to the jury. The judge only decides, as in the case of proving the execution of a deed, whether there is, primafacie, any reason for sending the entries at all to the jury. — 1 Greenleaf’s Ev. § 49; Larue v. Rowland, 7 Barb. 107.

Mr. Phillips, in his work on Evidence, says: “ Neither the admissibility, nor the effect of evidence, will be altered by the circumstance, that the fact which the judge is to decide, as a condition precedent, is the same fact that is to be decided by a jury on the issue: as where the declarations of an agent are admissible, he may first prove to the satisfaction of the judge that he is an agent, and his evidence therefore is admissible, though the question at issue turns upon the fact whether he be an agent or not, and the jury have ultimately to decide that question.” — 1 Phil. Ev. 6-7. If, on the hearing of the preliminary testimony as to such entries, the judge decides in favor of their admission, they should go to the jury as evidence, “unless the defendant, in open court, deny upon oath their truthin which event, they, or such of them as are thus denied, are no evidence, and cannot go to the jury at all.

Accompanied with proof of hand-writing, the books of original entries of a physician would, in most, if not in all cases, bear intrinsic evidence upon their pages of their true character. In New Jersey, such and similar books are sufficiently identified, by proving that they are in the party’s hand-writing. — Shute v. Ogden, 2 Pennington, 921. And such we hold, would be, prima facie, sufficient proof of identity.

3. Every contract in this State, the consideration of which is founded upon services rendered as a physician, is void, unless the person rendering such services has obtained a license to practice in such capacity, either from one of the medical boards of this State, or at some medical college in *183the United States; and a diploma from any such college is evidence of his authority to practice medicine and surgery. Code, § 977; Acts, 1859-’60, p. 20.

A proper construction of the said act' of 1859-60 forbids the conclusion, that before the^physician can derive benefit from his diploma, he must prove the incorporation, or regular establishment and organization, of the medical college awarding it. A diploma is an instrument, usually under seal, “ conferring some privilege, honor, or authority; now almost wholly restricted to certificates of degrees conferred by universities and colleges.” — Worcester’s Dictionary. Such an instrument, generally, if not universally, on parchment, is not easily fabricated ; and we think it was the intention of the legislature that a diploma, when produced, should be received without further testimony in regard to it, as 'primafacie “ legal evidence of the authority of the physician to practice medicine and surgery.” The act of 1859-60, being remedial in its character, must receive a liberal interpretation, in furtherance of the object intended to be accomplished by it.

4. The loss of the original having been shown, the plaintiff produced the next best evidence of it in his power; which was testimony that a diploma had been awarded and delivered to him, by a medical college in the United States. The deposition containing this evidence was properly admitted to the jury, with the exception of that portion in which the witness stated the contents of an order appearing on the records of the college. An examined copy would have been the highest and best evidence of this order. It may be, however, that the testimony relating exclusively to the order was superfluous or redundant, the case of the plaintiff as to the diploma having been fully made out by the other testimony of the witness; and that, consequently, its admission was error without injury. Shepherd’s Digest, 568, § 90; Jemison v. Smith, 37 Ala. 185; Bishop v. Blair, 36 Ala. 80. But whether this rule can be properly applied under the facts of this case, we will not determine, inasmuch as the judgment must be reversed for the error before noticed, and the point will probably not arise again on. another trial.

Let the judgment be reversed, and the cause remanded.