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Cohen v. Borough of Bradley Beach

Decided: January 17, 1947.


On appeal from the Supreme Court.

For the appellant, Ward & McGinnis (Peter J. McGinnis, of counsel).

For the respondent, Doherty & Conklin (Charles C. Stalter, of counsel).


The opinion of the court was delivered by

HEHER, J. Plaintiff charges negligence on the part of the defendant municipality in the maintenance and operation of a public bath house on the ocean beach, whereby she suffered burns from scalding water while using its facilities for a stipulated fee. The mishap occurred on July 17th, 1944. Plaintiff, who was then seventy-three years of age, testified that as she was leaving a bath tub into which warm salt water had been drawn by an attendant, after having spent a half hour therein, scalding water suddenly gushed in copious quantity from the faucet and inflicted the burns for which compensation is sought. It was a serious injury. Plaintiff was hospitalized for some three weeks; and she was incapacitated thereafter for about three months. It is conceded that the temperature of the water devoted to this use varied between

155 degrees and 170 degrees. At all events, plaintiff was severely scalded -- a condition, her attending physician said, that "would occur from sitting in very hot water, boiling hot water, so that the flesh was cooked." The gravamen of the complaint was the operation of the bath house facilities "with poor and defective plumbing and * * * incompetent servants and agents whose incompetency" was known to defendant, and with "defective" and "corroded water pipes, pipe joints, faucets, washers and bath tubs," and without "proper inspection." Opinion evidence was introduced by appellant tending to show that the breaking of the "stem" in the faucet, due to constant usage as a conduit for salt water of high temperature, was in all likelihood the cause of the sudden gushing forth of the hot water.

A jury was empanelled to try the issue; and there was a verdict for defendant.

Defendant apparently conceded at the trial that the evidence would sustain an inference of negligence on its part; there was no motion either to nonsuit or to direct a verdict in its favor.

It is assigned for error that the learned trial judge, over objection, permitted the introduction in evidence of what purported to be "a history in the hospital record" as to the circumstances of plaintiff's injury. The evidence came in through cross-examination of plaintiff's attending physician. The question and answer follow: "Q. Is it not true, Doctor, that above your signature there is a history in the hospital record that she was burned when she was struggling to turn the faucet on in a clockwise rotary movement? Is that not in the hospital record? Part of that is treatment and part is history? A. That is correct. That is part of the history of the hospital records." But the witness earlier had testified that the "detailed history" was taken by an interne, identified but not called as a witness; that he (the witness) did not "know how it was given," and that plaintiff spoke only "Yiddish," and the interne "did not speak Yiddish." There was uncontradicted evidence that plaintiff did not speak the English language. The writing signed by the physician also contained his diagnosis.

The "history" is plainly hearsay and, since it is not within any of the exceptions to the rule rendering such evidence incompetent and inadmissible for lack of the conventional tests of testimonial trustworthiness, its admission constituted prejudicial error calling for a reversal of the judgment. State v. Shapiro, 89 N.J.L. 319. There is not that circumstantial probability or guarantee of trustworthiness (to invoke the formula of Professor Wigmore) which warrants the reception of such a record as evidence, without the usual test of cross-examination, even under the principle of necessity which forms a well-defined exception to the hearsay rule. A "history" such as we have before us is not admissible under common law principles; and the declaration of a contrary rule on grounds of policy is a legislative rather than a judicial function.

We have read the examination in chief and the cross-examination of the particular witness; and it is obvious that the challenged question was designed, not to test the accuracy of the witness' testimony under direct examination, or otherwise to affect his credibility, but rather to introduce in evidence a ...

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