272 Mass. 341 | Mass. | 1930
This is an action to recover for personal injuries alleged to have been received by reason of negligence of the defendant. The record recites that counsel for the defendant "agreed in open court that the defendant was negligent and as a result thereof the issues at the trial were limited to damages only.”
On September 14, 1926, the defendant was operating a motor vehicle in Sterling in this Commonwealth at a speed estimated from forty to fifty-five miles an hour and ran into a motor bus in which the plaintiff was a passenger, as a result of which she was thrown to the floor and received personal injuries which could have been found to be serious. The case is here on exceptions to the admission of evidence, and to
Dr. William E. Denning, called by the plaintiff, qualified as a medical expert; he testified that he examined the plaintiff on March 22, 1929; that while making the examination he dictated some notes to his nurse, which he referred to and read during his direct examination for the purpose of refreshing his recollection. On cross-examination counsel for the defendant asked the witness for his notes, examined them, and then turned them over to his associate who also examined them. Counsel for the defendant then questioned the witness generally with reference to the notes and to their subject matter. On redirect examination counsel for the plaintiff offered the notes in evidence; they were admitted subject to the defendant’s exception, and marked exhibit sixteen. On the following morning counsel for the plaintiff began to read the notes to the jury, subject to the defendant’s exception. In the notes so read appeared the following: “Saw Dr. Curran about six weeks after accident. Dr. Curran advised operation. No operation done. Examination by Dr. Curran for insurance people.” After this portion of the notes was read counsel for the defendant interrupted and objected thereto. A conference then took place between counsel and the judge but not in the hearing of the jury, and counsel for the defendant asked the judge to declare a mistrial because it appeared that the defendant was insured. The trial judge denied this request subject to the defendant’s exception.
Dr. John J. Curley, called as a witness by the plaintiff, testified that he treated the plaintiff on the night of the accident, and was her attending physician; that the last time he treated her professionally was November 15, 1926; that he had a history given him of the plaintiff’s condition since he last saw her, and had heard Dr. Denning’s notes read in court but did not hear him testify. He was duly qualified as an expert on his direct examination and was asked certain hypothetical questions by the plaintiff’s
At the close of the evidence counsel for the plaintiff moved that exhibit sixteen, which contained Dr. Denning’s notes, be struck from the record, and that the jury be instructed "to eradicate from their consideration anything that has occurred during the trial, either in the reading of the notes or the notes themselves, from their consideration.” He stated: "The reason I do it is because there is an exception based upon the introduction of these notes, and because I think they are already in anyway.” The judge allowed the motion and then said to the jury, "you are to strike from your, minds and, eliminate from your consideration that exhibit if in fact you have any recollection of what was in it, it is no longer a part of the case. I will have something further to say about it in the charge.” In the charge the judge referred to Dr. Denning’s notes (which were upon three cards marked exhibit sixteen) as follows: “They were admitted at the time when later offered by counsel for the plaintiff. They have later been excluded upon his own motion and that exhibit has been removed from the case and you are to remove from your minds any facts which may have come to you through the reading by counsel for the plaintiff of those records or those notes upon their admission as an exhibit.”
Dr. Denning while testifying could properly consult his notes for the purpose, of refreshing his recollection, but neither he nor the plaintiff’s counsel should have been permitted to read them to the jury. The fact that counsel for the defendant called for them and used them during the cross-examination did not thereby make them competent as evidence. Commonwealth v. Jeffs, 132 Mass. 5, 7. Capodilupo v. F. W. Stock & Sons, 237 Mass. 550. Commonwealth v. Ponzi, 256 Mass. 159,161,162.
If the error was cured so far as the reading of the notes
Other exceptions saved by the defendant need not be considered.
Exceptions sustained.