On appeal from the Union County Court of Common Pleas.
For the plaintiff-respondent, John L. McGuire (Samuel J. Marantz, of counsel).
For the defendants-appellants, Townsend & Doyle (Mark Townsend and Thomas F. Doyle, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Porter.
This is defendant's appeal from plaintiff's judgment in the Union County Court of Common Pleas. The plaintiff was seriously injured as the result of a collision between two automobiles, one owned by the defendant Dr. Goldfield and driven by his employee, Abel Caldwell; the other owned by Edward Hennessey and driven by his agent, Peter Conley. The plaintiff, a victim of the collision, was on the sidewalk waiting for a bus near the intersection of Sixth and East Jersey Streets, in Elizabeth, when the collision between the two cars occurred. The Goldfield car, after the collision, skidded into an automobile parked in the vicinity and drove it against and upon the plaintiff. The jury returned a verdict of no cause for action against the defendants Hennessey and Conley, but returned a verdict against Goldfield and Caldwell.
There are ten grounds of appeal listed. They are argued under four headings. Under the first it is contended that the trial court erred in refusing to strike out certain testimony of the plaintiff's witness, Dr. Weigel. The theory of the objection is that the witness made examination of the plaintiff for trial purposes about two weeks before the case was to be tried and that the plaintiff then told the doctor about his subjective symptoms from which he arrived at a conclusion. Evidence offered by a non-treating physician, based on what the patient tells him, a prospective witness, about his condition, is not competent. It is hearsay and likely always to be harmful because of the injured person's self-interest. But such was not the situation here. The doctor was the treating physician. He had charge of the plaintiff as an orthopedic specialist throughout the plaintiff's hospitalization which lasted from the time of the accident, February 17th, to April 26th, 1941, and thereafter treated him until October. Furthermore, on the plaintiff's visit to Dr. Weigel two weeks before the trial, the plaintiff, according to the doctor's testimony, came for examination "because of continued head pains and dizziness." The declaration made by a patient to the doctor who is treating him, and on whose treatment he relies for cure, is (although it is hearsay)
admissible in evidence. This exception rests on the practical reason that a patient, anxious to get well, will likely be truthful to his doctor. Compare Consolidated Traction Co. v. Lambertson, 60 N.J.L. 452; 38 A. 683. The motion to strike was properly overruled.
It is next said the court erred in refusing to strike out part of one of Dr. Weigel's answers to a question. The doctor was under cross-examination concerning the day-to-day statements on a hospital record that was not then or subsequently received in evidence. It seems that fractures in the plaintiff's left leg were not discovered until X-ray pictures were taken twenty-two days after the accident and that X-ray pictures of the right leg were not made until thirty-five days after the accident. Appellants were endeavoring to show that the plaintiff had been "up and around" in the interval before the leg fractures were discovered. The doctor was testifying from a chart record which he had not made. It had been excluded as evidence on plaintiff's objection. At any rate, entries on the chart indicated that the plaintiff was in a wheel chair on February 27th, which was ten days after the accident. Then came the following questions:
"Q. He was up in a wheel chair the next day, the 28th [eleven days after the accident], wasn't he? A. It says that here.
" Q. Then on March 2d, he was up and around and it doesn't say a single word about any wheel chair, isn't that true? A. It says on the record he was up and around.
"Q. And that continued daily and until March 11th, when he got the leg X-rayed and you applied a cast to his left leg? A. It says that on the note here. He did not stand, however, I know that."
At this juncture appellant asked that the last part of the answer be struck out. The motion was refused and an exception was entered. It is to be remembered that the record or chart was not in evidence. Appellant nonetheless cross-examined the witness on its contents. This should not have been permitted. The chart was hearsay. Nevertheless, after much unseemly argument between ...