*1 v. TAYLOR. INS. CO. LIFE YORK NEW 8488.
No. Appeals Court States
United Columbia. District of
Argued March 8,May
Decided
Argued Rehearing Oct. 1944. Jan.
Decided *2 dissent- EDGÉRTON, Justice, Associate
ing part. Washington, Bogley, Aubrey R. Mr. Mc- D. C.,D. Frederic whom Messrs. Flannery, G. Bow Kenney, Spalding John Wall, all of Craighill, R. doin John C., were brief, Washington, D. appellant. Washington, D. Coe, of Lowry N. Mr. C., appellee. Justice, and GRONER, Chief Before Associate ARNOLD, EDGERTON and Justices.
ARNOLD, Associate Justice.
a life in-
brought on
an action
This is
indemnity
double
recover
policy to
surance
in-
making
double
such
provision
under a
of the insured
death
demnity payable if the
solely
effected
injury
“bodily
resulted
external,
and accidental
violent
through
causes.”
killed while a
insured was
Hospital
in Wash-
General
Reed
at Walter
indemnity
oniy
Municipal
The double
amounted to
Court whore
0n
brought prior
$2,000
but this suit
$3,000.
involved
less
than
amount
conferring
jurisdiction
exclusive
the act
well
a stair
Newark,
C.,
down
a fall
Co. of
N.
D.
ington,
Mutual
Newton,3
J.
railing. The
by a
protected
“
were no
night
there
* *
*
fall occurred
presented
proofs
were ad-
*3
indicated
circumstances
The
witnesses.
part
representations on the
of
as
missible
jury gave a verdict
The
suicide.
possible
policies
the
whose benеfit
party for
the
indemnity
De-
policy.
the
under
double
taken,
death and the manner
as to the
were
judgment on that
from a
appeals
fendant
They were
of
insured.
of
death
the
the
verdict.
compliance
company in
presented
the
to
trial
requiring
that the
error claimed
policy
first
with the condition
the
physician
in-
court
statement
the
excluded the
of the death
notice and
re-
part
proofs
which
death
payment
the
of the
was
preliminary
the
sured
to
as
beneficiary.
quired
by
to
money.
be furnished
the
intended for
They were
insurance
opinion that
The statement contained the
upon their
company,
the action of
the
rely.
the insured committed suicide.
company
truth the
had a
mistake,
Unless corrected for
the insured
the statement
excluded
court
trial
by
was
fair
bound
them. Good faith and
concluding opinion
after
to suicide
as
required
dealing
held
she
that
should be
beneficiary
not
had
that
the
the record
representation» deliberately
made until
state-
of such a
the submission
authorizеd
they
was
it
shown that
were made under
ap-
It
company.
insurance
ment
to the
facts,
misapprehension
ig-
of the
or in
company had
the insurance
peared that
subsequently
norance
material matters
(who
also the
was
physician
sent
the
ascertained.”
form,
filled in.
had
coroner)
lie
the
beneficiary.
request
the
the
This was at
apparent
It
above
from the
beneficiary
that the
court concluded
the
But
opinion
proofs
competent
that
of death are
be-
physician’s
the
not seen
statement
had
evidence of the cause of death
where
company.
It
transmitted
the
was
fore it
the relevant statements contained therein
com-
of the
representatives
appeared that
beneficiary.4
authorized
the
beneficiary in com-
pany had assisted the
beneficiary
fact
that
the
the
submitted
death,
proofs
had not
pleting the
company
proofs
insurance
creates
the
to the fact
her attention
that
called
were
presumption
the stаtements
that
incon-
was
physician’s
to suicide
as
the
here the evidence on
authorized. But
own
that
with her
statement
sistent
presumption. The
voir
that
dire rebuts
appeared
accidental.
It
death was
physician,
no
who had
statements
physician
the statement
who made
accident,
personal knowledge of the
knowledge
personal
of the cause
had
inconsistent with the statement
death.
the record as to all these
While
beneficiary,
normal in
so
there is a
clear,
ap-
circumstances
is not
counsel
called
were not
to her
ference that
deny any
pellant
of the court’s
failed
companies engaging
attention.
Insurance
during
argument
conclusions
fact
on
practice
assisting
in the laudable
bene
admissibility
the evidence.
making
proofs
out
of death
ficiaries in
conclusions
of its
On
basis
in
attention
inconsistencies
should call
Or
ruling
correct.
the court’s
fact
they expect
proofs
later to
them
if
use
physician sub
by a
statement
dinarily a
assisting
person
agаinst
policy as
beneficiary
mitted
consciously adopt
theory
she was
admissible
proofs of death
part of the
ing
authorizing
statement
con
ad
Its
of death.3
manner
ta
report.
own
tradicted her
the fact
missibility is based
duty
is to furnish
court
Appellant
beneficiary
it
contends
whose
plaintiff
presumed
permitting
to have
introduce
must
erred in
proofs of death
made in those
friend’s
the statements
claimant’s statement
the
statement,
authorized
part
proofs
trial
takes a
she
which were
proofs.
If later at the
death,
offering
proofs
physician’s
without
with the
position inconsistent
error because
This
statement.
state
those
she has submitted
death
all,
death,
admitted at
should
proofs if
representations.
ments
admissible as lier
error
But
gone in as a whole.
As
Court said
the case
this,
of death such
certifícate
Travelers’
as
Wertheimer
Protective
Ass’n,
Cir., 1933,
EC
64 F.2d
circumstances
this
it
approval
3 1875,
amounts
him
Wall.
3
L.Ed. 703.
correct,
beneficiary
it.
“Where
in an insur-
statements
and should
policy
part
against
fitas as a
proofs
be received
evidence
him
ance
admitted
prejudicial because the
was not
any
Con-
court established
Act of
proofs
nothing which
of death contained
record,
gress,
writing
any
fact
testimony beyond the
added
entry
the form of an
in a
other-
book or
madejas
changed her
plaintiff
wise,
a memorandum or record of
»
this
position.
hardly possible that
act, transaction,
event,
occurrence, or
affected
verdict.
act,
shall be admissible as evidence of said
occurrence,
event,
trans-action,
if
it shall
ground
error is
refusal
The second
appear
was made in the
of the trial court to admit
that it was
General
original
Walter Reed
records of
regular course of such business to make
Hospital
the death
relating to
cause of
*4
such memorandum or record at
the time
consisted of
insured. These
records
act,
transaction,
of such
occurrence, or
A
following
(1)
documents:
event or within a reasonable time there-
hospital
insured’s admission
to the
”
* * *
after.
his
illnеss
giving an account
A
reading
literal
the above
mind;
insured’s
A
(2)
state of
statute
make the
in this
records
.would
admitted;
Re-
(3)
when he
condition
case
theory
on
admissible
busi
performed
operations
ports on three
operating
ness of
hospital
requires
a
conversations
Reports
hospital;
(4)
records of
patients,
the histories of
re
he had
indicating that
with the insured
ports of unusual
diagnoses
conduct and also
of con-
suicide;
Report
(S)
attempted
by physicians.
Supreme
But the
Court in
containing
psychiatrist
'with a
sultation
Hoffman,8 has,
Palmer v.
believe,
we
limit
wished
by the insured
statements
ed the admission of records under the Fed
show-
psychiatrist
die;
Report
(6)
Shop
eral
Book Rule statute to those which
hys-
“psychoneurosis,
ing
diagnosis of
are trustworthy
because they represent
Transcript of
type”;
teria, conversion
routine
of day-to-day operations.
reflections
findings
the Board
proceedings and
The
holds that
Reed General
Walter
Officers
statute is not one “which opens
wide
the cause of the
Hospital
determine
door to avoidance of cross-examination.”
the insured.
death of
In this case the records are not -of
policy
waiver
The
contained a
prove
fered
routine facts such as the
any
against
privilege6
the disclosure of
date of admission
hospital,
the names
acquired through confidential
information
attending physicians,
They
etc.
by physicians.
treatment
We believe that
prove
offered to
the truth of accounts of
privilege
waiver of
it was
sufficient
complicated
events and of
medical and
14—308 of the District
provided in Section
psychiatric diagnoses.
accuracy
The
Therefore,
these
Code.
Columbia
n portion of
such
bias,
accounts is affected
judgment,
records,
large
least
or
and memory;
are not
the routine
them,
have been admissible
con
product
system.
of an efficient clerical
testimony of the witnesses
with the
nection
lacking any
There
here
internal check
opinions
contained in the.
to the events
the-reliability
оf the records in
re
this
However,
reports.
had such witnesses been
spect,
provided
such as
“payrolls,
subject
would have been
called
to.
receivable,
accounts
''i-Q.ss-examination.
payable,
accounts
bills
question
here is
admissible m
these records are
lading
and the like.”
testimony,
absence of
so-
direct
under the
Court has stated that
the test of admissi
Rule,7
called Federal
Book
bility must be “the character of the records
* * *
reads as follows:
and their
reliability
earmarks of
“In any court of the -United
States
origin
acauired from their source and
by adoption.
applying
privilege
Wigmore,
admission
stat
For cases
Evidence,
Ed.,
1073, p.
Kaplan
hospital
§
570.”
see
v.
Russo
ute
Metropolitan
App.
Co., 1939,
v.
1939,
Life
Ins.
Manhattan
132,
844,
463; Eureka-Mary
Conn.
3 A.2d
F.2d
D.C.
Gray,
App.
Policy.
“Waiver Provision
Co. v.
I
land Assur.
* * *
expressly waive,
Carmody
on behalf
Of
D.C.
any person
Company, 1915,
any
Capital
who shall have
Traction
claim
any' policy
interest
Ann.Cas.1916D,
issued hereunder,
App.D.C.
provisions
all
forbidding
law
Act
June
§
c.
* * *
physician
.5
hereafter
Stat.
U.S.C.Á. 69
mе,
attend or
examine
disclosing
63 S.Ct.
any knowledge or
information
87 L.Ed.
which ha
A.L.R. 719.
thereby acquired.”
principle
applied
specifically
has
to a
ad-
compilation.”
To
the nature of their
indemnity
double
on a
recover
life
suit to
event,
report
or a
of an
mit
narrative
policy where
issue was
wheth-
insurance
conversation,
substitute
diagnosis,
aas
or a
committed suicide.10 It
er
insured
can-
large
testimony,
give
for oral
is to
not
in this case
contended
self-serving
use
organization the
prejudicial,
not
erroneous
instruction
important
test
statements without
because
was such that
the evidence
cross-examination.
Cross-examination is
depended
well
where
result
unimportant
systematic routine
in a case of
lay.
ultimate burden of
organization where
large
entries made
remanded.
Reversed and
judgment
skill
of observation
Hoff-
factor. We believe
that Palmer
EDGERTON, Associate
application
man
Justice.
restricts the
of the Federal
type
statute to that
I
records are
Rule
admissible
think
shop-book
business entries.
the federal
rule.1
expressly
reasserted
Second Circuit
sought
Hoffman
record
In Palmer v.
opinion in
proposition Iloffman
railway
to be
was a
introduced
Palmer,2
Supreme Court,
I
think
required by
rules
which was
accident
*5
Palmer,
Iloffman
opinion affirming
v.
in its
was affirmed.
railroad.
Its exclusion
the
implication.
The basis
asserted it
clear
technically dis-
While the case
be
Supreme
in
Court’s decision
Palmer
gen-
tinguished we
for the
think
stands
it
Hoffman,
it,
I
is
v.
as
understand
that
principle
eral
outlined above and
we have
engineer’s
reports
accident
“are
railroad
excluding
that
in
the rule
court
these
systematic
the
conduct of
for
the
hospital records is correct.
*
**
enterprise
railroad
utility
as a
business.
assignment
final
of error
The
primary
litigating, not
in
Their
“
3
the instructions
the court
is based on
o-f
railroading.”
‘Regular
in
course’
busi-
proof.
the
According
burden
to the
ness,”
said,
Court
its mean-
the
“must find
policy
plaintiff
terms
the
had the
ing in the
business
inherent nature
establishing
burden of
death was ac
that
question
in
systematical-
and in methods
cidental
order to recover
indem
double
ly employed
business
for the conduct
nity.
jury
such that the
4
The
hospitals
business
The
as a business.”
might have drawn the
o-f
inference
suicide
sys-
The methods
patients.
caring
from all the circumstances. But the court
the conduct
tematically employed for
adopted
theory
presumption
making of such
include
business
suicide,
against
based on
instinct of
appellant offered in this case.
records as
self-preservation,
changed
burden of
impossible
patients
Proper
care
It,
proof.
therefore,
jury
instructed the
utility
primary
Their
records.
without such
burden was
defendant
on the
opinion,
my
there-
litigating.
is not
preponderance
evidence fore,
in the Palmer case does
decision
was not the
death of the insured
argument
them and the
not exclude
placing
An instruction
result of accident.
statute,
case,
admits
well as
proving
accidental death
the burden
them.
plaintiff was refused.
respects I
in the
concur
In other
principle that a
This was error.
сourt.
against
one
such as
presumption
going for-
burden
Rehearing.
On
shifts
suicide
evidence, and does not
ward
ARNOLD, Associate Justice.
proof,
burden
change
ultimate
The insured was found dead at
foot
scarcely needs a
settled
so well
Hospital.
in Walter Reed
a stairwell
authority. The
Court
citation
Cir.,
492;
9
page
Inc.,
Td., Cir.,
114,
page
Id., 318
F.2d
115
2
63 S.Ct.
U.S.
222;
645,
480,
v.
317 F.2d
Reed
Order of United
L.Ed.
A.L.R. 710.
America,
Commercial Travelers
Gamer,
York Life
New
Co. v.
Ins.
F.2d
252.
500,
303 U.S.
58 S.Ct.
82 L.
129 F.2d
1218;
726, 114 A.L.R.
Ed.
see
Jef
63 S.Ct.
Ins.
ferson Standard Life
mer,
Co.
Clem
Cir., 1935,
L.Ed.
A.L.R.
103 A.
63 S.Ct.
318 U.S.
L.R.
Scales
Prudential Life Ins.
Cir., 1940,
in tlic
he
should
enacted
legislation
proposed
offered here are not
The records
com
set ont
reasons
for the
into law
are admissible
kind of entries
accompanying memo
and
munication
principles
established
re
part of this
rаndum, which are made
rule. Such
Book
Cong., 2d
74th
H.Rep.No.2357,
port.”
product
are
those which
records must be
Sess., p. 1.
accuracy
procedure and whose
of routine
House
members
The remarks of
substantially
fact that
guaranteed
explaining
hill
Committee
Judiciary
reflection of
is an automatic
the record
Chairman
clear
intent.
the same
obviously
This
excludes
observations.2
said:
Sumners
conjec
depend
those
sitting
a trial
judge,
circuit
“The
reliability
on the
The internal check
ture.
kept in the
books
that record
judge, held
from two
records comes
of admissible
course,
be admissible
would not
ordinary
system,
clerical
(1) an
sources:
efficient
produced
indi-
Government
unless the
kind
fact that
entry,
could
made
vidual who had
competent
on which
men
observations
making of
testify
reference
Supreme
As the
Court
would not differ.
course, according
entry,
so
Of
forth.
pointed out,
recently
admissibil-
the test
kept,
books are now
the manner
ity
“the character
*
* *
machines.
many
entries
times
reliability
ac-
their eаrmarks of
or a half a dozen
a dozen
may be that
It
quired
origin
their source and-
and the
in a set of books
entries
people
make
will
compilation.”
Typical
nature
nobody
able
swear
will be
“payrolls,
accounts re-
such records
given record.
amade
ceivable,
payable,
lading
bills
accounts
the like.” The
Court fur-
“Personally,
I am ashamed
ask the
ther observed
the Federal
holding by
This
pass this bill.
House to
opens
one “which
wide
Statute
is more than
is ridiculous.
judge
the
that,
*7
to
avoidance
cross-examina-
door
the situation
has de-
is
but that
**
tion
I
up
do not understand
veloped
there.
how
hold, in
view
any judge can
what
is
Hospital
are no
records
differ
accepted,
bring
that one must
generally
kept
any other
records
kind of
ent from
person
made the identical
identical
They
regular course
business.
must
entry can be
entry, before
introduced
subjected
subject
the same tests as to
kept
reg-
the books
where
are
in evidence
Regularly recorded facts as to the
matter.
kept
properly
in the
ularly
ordinary
and
or treatment on
patient’s condition
it,
But he has held
business.
and
competent physicians
the observations of
pur-
has been introduced
this hill
are of the same
not differ
character
would
80,
that situation.”
posc
curing
(V.
Thus,
payrolls.
of sales
as
records
20,
Apr.
1936)
patient
of a
examination
ad
routine
Duffy
Congressman
Committee
hospital stating
had
mission
following comment:
made the
injuries is
An
no external
admissible.5
ob
“*
**
enlarges
1 which
that there
a deviation of
section
servation
septum
Likewise,
hearsay
is
relating
nasal
admissible.6
rule
patient was well
admissibility of
observation that the
business records. That
Wig'inore
(3rd
Lines,
Ed.,
Inc.,
Ulm v. Moore-McCormack
Evidence
1040)
supra
;
note 5 Borucki v. MacKenzie Bros.
Co.,
92,
1938,
Hoffman,
(rec
125 Conn.
3 A.2d
318 Ü.S.
Palmer v.
laboratory giving
analy
from the
87 L.Ed.
ord
63 S.Ct
eating
plain
from
sis
food
A.L.R. 719.
ill);
tiff
Grossman v. Delaware
Ibid.
Lines, Inc.,
Elect. Power
4 W.W.Harr.
Ulm v. Moore-McCormack
(laboratory
34 Del.
these
Hoffman,
company
sup-
in
The insurance
that
offered
fol-
is true
the
Palmer
records,
ra,
Supreme
oppor-
lowing hospital
spoke
proof
Court
of the
the
cite,
op.
misrepresent
13 Wigmore,
supra
counter-motive
note
is made to
particular
aрpear
entry
in a
instance
must
the
“It
is often added
there
1527:
misrepresent.
be excluded. This
been no motive
This
limitation
is a
one, provided
interpreted
fair
not
mean
it be
does not
the offeror must
motives;
all
mere-
of
such
but
with over-strictness.”
absence
cite,
op.
fairly positive
supra
ly
Wigmore,
existence of a
if the
note
regular
the
in a
in
course
reasonable time
they were made
thereafter. All other
history, etc.,
making
A statement
circumstances of
(1)
the
of such writ
business:1
from
physician
ing
record,
personal
the
by
attending
or
including
taken
lack of
hospi
the
knowledge
maker,
may
he
admitted
insured when was
entrant or
the
tal;
his condition
weight,
they
shown
(2)
lo affect its
but
shall
time;
reports
operations
(3)
admissibility.
affect
its
The term
business,
which he
profession,
underwent and other treatment
‘business’ shall include
reports
(4)
hospital;
occupation,
calling
every
received
kind.”
and
his
in 'which he discussed
consultations
is an
Book Rule
depressed
of mind and
tory
state
and his
hearsay
purpose
Its
is to
rule.
avoid
explаnations,
them
gave conflicting
one
necessity
identifying,
locating
and
suicidal,
large
taking
co
of his
dose
calling numerous
chief
witnesses.
Its
reports
psychia
aspirin;
(5)
deiu and
prevents
opposing
drawback is that
it
examinations,
which included a
tric
one of
party
cross-examining
from
them. The
hypochon
“psychoneurosis,
diagnosis of
recently
pur-
has
its
Court
stated
;
proceedings
driasis”
pose
principle.
enterprise,
and its
An
of the
findings of
Board of Officers
Hoffman,
said in
Court
common-
Palmer v.
concerning
death.
cause of
ly “entails the keeping of numerous books
rec
rejected
of these
court
all
trial
and records
conduct or use-
essential
beneficiary recovered double
ords. The
operation. Though
ful in its efficient
such
indemnity
theory
death was
books and records were considered reliable
accidental.
trustworthy
major
decisions in the
company,
Appellant,
world,
insurance
now
industrial and business
use
their
rejection
sixth
concedes that
litigation
greatly
circumscribed оr
question,
correct. That
there- hedged
item
about
rule —restric-
fore,
is not
us. Some of
dis-
greatly
before
tions which
increased the time and
puted
quoted
transcript;
items are
making
cost of
where those who
*
**
opin-
merely
my
described.
In
others
made the records were numerous.
quoted
been
ion
items should have
ad-
problem
It was that
which started the
So
of the oth-
mitted.
far
the character
adoption
movement
legislation
towards
descriptions,
judged
ers can
embodying
principles
present
* *
*
they
I
been
think
should have
admit-
legislative
Act.
And
ted.
of the Act
purpose.”
indicates the same
The basis
probability
Rule is “the
Rule,
The federal
an Act of
trustworthiness
records
because
provides:
Congress,
any
“In
court of the
routine
day
reflections of the
to day
any
States and in
United
court established
* * *
operations
‘Regular
of a business.
Congress,
any writing
Act
or
rec
course’ of business
find
ord,
must
its meaning
entry
of an
the form
in the inherent
otherwise,
nature
business in
book or
as a
memoran
question and in the methods
act, transаction,
systematically
any
dum or record of
oc
employed for the
currence,
conduct
event,
or
business
shall be admissible as
as a business.”
act, transaction,
of said
occur
'
event,
rence,
appear
hospitals
if
shall
The routine
it
are with-
regular
meaning
was made in the
literal
That
Rule.
regular
was the
are within
Congress
that it
intent
of such business to make
shown
the fact
such memoran
that two of the cases cit
act,
reports
dum or record at
time
such
ed in the committee
involve such
transaction, occurrence,
princi-
They
event
with
records.4
are also within the
contrary testimony.
Palmer Hoffman,
318 111 —
There was no
No
question
regarding
was raised
the time
63 S.Ct.
87 L.Ed.
regular
within which the
course of busi-
A.L.R. 719.
required
Cong.,
session,
ness
entries to be made.
74th
2nd
S. R. No.
hospitals,
Cong.,
session,
view
custom of
stand-
74th
2nd
H. R. No.
ing
Hospital,
of Walter Reed
and the ab-
2357. The
eases referred
are Grossman
suggestion
contrary,
sence
Delaware
Electric Power
4 W.W.
521.,
infer
we
course re-
34 Del.
Harr.
A.
quired
the entries
be made within a rea-
Louis v.
St.
Boston & Maine R.R.
83 N.
sonable time.
H.
308
explained
omis-
ord alone.
and
as
The occasional errors
Rule
pie
purpose
sions,
aof
occurring in
routine work
case.
in the Palmer
Supreme Court
staff,
pa-
large
for
more an
caring
are no
obstacle
hospitals is
The business of
general
busi-
of such
this
trustworthiness
nature”
By
tients.
“inherent
its
on
books
are the errors
witnesses
keeping
numerous
than
ness “entails the
states
or
a number
use-
stand.” Statutes in
conduct
to its
and records essential
specifically
“The meth-
admission
operation.”
have
authorized the
ful
its efficient
hospital
its con-
employed” for
records.5
systematically
ods
keeping
rec-
making and
duct include
Appeals
both
Sec-
The Courts
histories, diagnosis and treatment.
ords
have
that hos-
Circuits
held
ond and Third
day
reflections
These
“routine
are
fed-
pital
admissible under the
records are
hospital’s busi-
day operations” of the
Cir-
Rule.6
the Seventh
eral
cuit,
out, some
And,
points
Wigmore
ness.
they have
jurisdiction,
and in this
of records
the admission
the reasons for
objection.7 Mоre-
without
been admitted
over,
force to
apply
special
in evidence
copied
verbatim
the Rule was
almost
hospitals.
calling
all
“The
records of
act,8 and states
model
from
so-called
physicians and
attendant
the individual
repeated-
adopted
have
have
act
cooperated to make the
have
nurses who
hospital
ly applied it to
records.9
would be a
single patient
record
even
“act,
covers records of an
serious
with convenience
Rule
interference
transaction, occurrence,
Any
or event.”
hospital management.
is a Circum-
There
in,
of,
any
development
manifestation
Trustworthiness
stantial
Guarantee
* *
physical
*;
patient’s
condition
and re-
for the records
made
mental
Observation, diag-
an occurrence or event.
upon
of life and death.” It
lied
in affairs
acts,
nosis,
hospi-
occur-
treatment
may be
that the members
added
rences,
Accordingly
or events.
records of
persons of
than aver-
staff are
more
tal
condition,
treatment,
diagnosis and
responsibility;
they have
age
and that
two
motives,
regular
course
when
strong
humanitarian
one
correctness,
requires
be made
professional,
them
event,
time after the
usually
within
reasonable
motive
fabrication. Dean
“Moreover,
Wigmore
admissible under
Rule so far
continues:
amidst are
Usually,
present
day-to-day
and in
details
scores of
relevant.
case,
opinion.
cases,
diagnosis
But even
can
involves
physicians and nurses
ordi-
narily
memory
before
Book Rule was enacted
recall
actual
few
entered;
specific
none
this court had held
records of the
data
“opinions”
rely upon
as the
themselves
record of
as well
“observations”
action; hence,
medical officers
More
own
them to
were admissible.10
to call
recently, hospital
ordinarily
stand
records of
nothing
add little or
objection.11
been admitted
information furnished
rec-
without
autopsy reports).
5 Wigmpre
ed.,
(“conflicting”'
Evidence, 3d
F.2d 797
1707.
§
7
Mary
1520,
States,
1530, 1530a,
Cir.,
Becker
F.
§§Cf.
v. United
145
1639.
7
provides
g.,
that,
(“Psychoneurosis Hysteria”);
land
e.
in civil
2d 171
Pru
statute
transcripts
cases,
U.S.App.
Saxe,
the-
dential
records of
Insurance Co. v.
77
.
Maryland
144,
Tuberculosis
D.C.
Sanitarium
309
expert may
physician
Rather,
tents
freight
a
or other
a
car.
disad-
the
vantage
less,
it is
likely
stand when
is
given
be
witness
to be
for counsel are
understanding
competent
commonly
expert
of techni
less
attack
helpful
jury’s
to a
testimony
testimony,
Shop
think the
Book Rule
than
and the ex-
lay
cal facts.
I
diagnosis pert
physician’s
competent
recorded
commonly
makes a
witness is
more
layman
broad
similarly
language
than the
admissible.
to defend himself.
result;
requires this
so does
of the Rule
When the
admits
Rule
hospitals and
liti
the convenience
transaction,
“act,
occurrence,
record of
diag
gants;
the fact
that
recorded
every pur
or event” it does not do
for
so
employed
“systematically
noses
pose.
It admits the record “as evidence of
up
business”
and “relied
conduct of the
transaction,
act,
occurrence,
said
or event.”
affairs of
death” establishes
on in
life and
making
Since
statement
is an act
relative
trustworthiness.
Relative
event,
patient
or
record
a
made a
is much
truthworthiness
аs
as
Rule con
proof
certain
statement
admissible as
pos
templates
human testimony
or
doing
he
so
his
relevant,
did
if
so is
if
sesses.
the cases which
Most of
have
we
regular course,
record made
and if
involved, diagnosis; some
cited
of them in
regular
requires
course
the record to
psychiatric diagnosis.13
volved
be
within
made
a reasonable time. The
making
psychiatric
It
diag-
course
mere
statement
true
which tends
error,
subject
depressed
nosis is
to indicate a
that cross-exam-
frame of mind is
ination is an
relevant
exposing
invaluable aid
to the issue
suicide. Whether
error,
Shop
patient’s
record of a
Book
may
avoids
statements
Rule
be
only
proof
argument
cross-examination. But the
used not
as
that he
made them
psychiatric diagnosis
but
should
true
is a
complex
operation
question.
permits proof
therefore
excluded
The Rule
be
event, etc., by
proves
the Rule
too much. For records
record only when
regular
simplest
requires
observations
of business
of the most
course
facts,
record to
objective
be made within
which are
conceded to be
reasonable time
Rule,
may
after
event.
admissible under the
It
be
regular
also sub-
cross-examination,
hospital’s
ject
errors
business
if
to record
available,
types
certain
might expose.
it were
statements
The al-
within a rea
may
sonable time after the
leged
have had no opportu-
observer
makes them
but,
nity,
adequate
opportunity,
or no
with the
ob-
events
which oc
serve,
may
hospital,
or
enters the
he
have
after he
it
made
effort to cur
can hard
observe,
regular
may
he
have
course
only
ly
or
be the
business
rec
and ineffective
may
casual
effort. He
the facts which
states
ord
within
have
rea
permanently
been either
time after
temporarily in-
occur.
it may
sonable
Thus
capable
of accurate observation.
may
He
be the
to ask disabled man
thing
disability,
one
his
and either
caused
observed
care- what
to record
answer,
lessly
opportunity,
recorded а
earliest
intentionally
but the
different
recording depends
thing.
upon
of these circumstances
like-
time of
None
upon
ly
appear
upon
Any
record.
and not
of them
of the statement
the time
time
by
may
injury.
disclosed
That
be
cross-examination.
recent
Rule,
very
denying oppor-
remote.
follows
tunity
cross-examination,
imposes
not,
itself,
permit
does
no Rule
use of the
greater disadvantage
litigant
patient’s
on the
statement
is record
of what
adversely
affected
a record
before he entered
psychia-
ora
occurred
upon
litigant
prove
tric
than
the facts which he
But
who is
stated.
adversely
permit
prove
affected
record of
con- Rule does
use
record
Metropolitan
Hoffman,
Co.,
v.
Palmer
v.
Pollack
Cir.,
128;
S.Ct.
L.Ed.
138 F.2d
144 A.L.
Wickman v.
Bohle,
R. 719.
Md.
196 A.
326. Of. Hun-
ter supra.
Derby Foods,
Contra, Lykes
Inc.,
Cir.,
*13
310
statement;
made
were not
the state before
These records
and
us.
that he made
They
were
it
be for
or
use.
accepted for
external
defensive
ment should be
what
upon
treatment
made to be relied
in the
stated if
in'proof
facts
worth
relevant
patient.
he entered
they
after
(1)
either
occurred
Palmer
declining, in the
It
true that in
some inde
hospital,
virtue of
(2)
or
case,
for
was made
which
admit a
rule,
such
pendent
:
Supreme Court said
purposes
defensive
or men
family history
as statements of
opens wide
change
major
which
“Such a
condition,15
testimony
oral
physical
tal or
cross-examination
door
avoidance
statement
the same
made
18 But
implication.”
should
left to
not be
same
of the
would be admissible
here,
be-
both
language
is irrelevant
pre-hospital
respect
With
to his
facts.16
dispute
not
cause the records here
more,
does no
but
Rule alone
and
purposes
because
made for defensive
less,
than
authenticated
also no
make
de-
does not
of these records
admission
acceptable
testimony
form
record
They
(1)
are
within
implication.
pend patient’s
was made.
that the
statement
Shop Book
express language оf the
any
is admitted
evi-
writing
Before
regular
in the
they were made
since
Rule
Shop Book
there
under the
Rule
are
dence
three
decided.
hospital’s
in the
preliminary questions of fact
be
sense,
regular
and
was the
strictest
(1)
writing
“made as
Was
them within a reasonable
course make
act,
any
record
memorandum
action,
trans-
(2)
They
within
Rule
are
time.19
interpreted
(2)
occurrence
event”?
Was it
case,
they
since
in the Palmer
any
regular
course
busi-
“made
day opera-
day
routine records
are
(3) Was it the
ness”?
upon in
and
to be relied
the in-
tions
record “within
make the
a reasonable
enterprise. They
are
ternal conduct
preliminary questions
Like
time”?
hospital what
“bills
business
to
lading
upon
admissibility
which
fact
20
like”
are to the
business
and the
depends,
questions
these are
They
(3)
are
a railroad.
within
judge.
interpreting
In
deciding
purpose
of the Rule since
principle
power
he has a
pre-
them
considerable
trustworthy and since their admis-
they are
abuse
Rule.
vent
recent case
many
necessity
calling
avoids the
sion
of Palmer v. Hoffman illustrates this.
are
within the estab-
They
witnesses.
Court
There
found that the
interpretation
judicial
of the Rule
lished
engineer’s
Rule did
reports
admit a
not
railroad
act
which it is
of the model
based.
accidents,
reports
such
because
hypo-
need not concern ourselves
We
systematic
“are not
conduct of the
might meet
which
some of
thetical
these tests
* * *
enterprise as a railroad business.
meet others.
but would fail to
primary utility is
litigating,
Their
not
Congress
consider
need not
We
17
railroading.”
primari-
Since
admitting
the records
intention
ly
use,
intended for external
defensive
by newspaper men, credit
are made
which
trustworthy
reports
are less
than
investigators
pur-
men,
for the ultimate
primarily
which are
intended to be relied
persons
news
selling
or views
pose of
upon
of action in
organizations
as the basis
the internal
to which
the business
outside
enterprise. Possibly
belong.21 might well
con-
some-
business
the men
only writings
might
Rule admits
be said of the
thing
the same sort
tended that
Officers,
opera-
incidental to the internal
which are
Board
records of
which
issue,
present
and does
admit writ-
in the
tion of a business
ings
not in
case. But
subject-matter
very
which are
nothing of
could be said
rec-
the sort
case,
treatment,
light
history,
of the Palmer
business.
the a
ords
particularly, it
well
contended that
question
admissibility,
18
481,
Meaney
States,
477,
15
U.S.
63 S.Ct.
v. United
Cf.
Wigmore,
Evidence,
ed.,
supra.
Note
Hoffman,
109,114,
J., concurring
16 Magruder,
Palmer v.
318 U.S.
in Pol
Cf.
Metropolitan
Co., supra;
A.
L.Ed.
63 S.Ct.
lack
Hospital
Evidence,
Hale,
L.R. 719.
Records as
reports
of tire committees of Con
So.Cal.L.R.
gress
no cases of
such charac
cite
S.Ct.
A.L.R.
ter.
L.Ed.
practically all
the Rule excludes
preserve
records common law. To
intact
statute;
ultimately
repeal
intended for external
for any applica-
*14
possible
all
Rule,
But records which meet
use.
tests
tion
as of any other
excluded, in
not to be
the teeth of
hearsay rule,
admit-
statute,
preserve
intact
ting
order
necessarily avoids cross-exam-
right of cross-examination as it existed
ination.
Notes
7. and
Sadjak
255;
Contra,
Grnbaugh,
Bros. S.
Co. v.
A.L.R.
S.
Co.,
F.2d 387.
Parker-Wolverine
281 Midi.
719;
citing
Lorenz,
think
I
is in
N.W.
Harrison v.
this court
error
303 Mich.
supporting
Wigmore,
Fancy
its view
6 N.W.2Ü
Geroeami
App.Div.
Rook Rule admits
“ob-
Produce
Fruit &
opin-
depend
servations
do