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Webber v. McCormick

Decided: October 21, 1960.

NELLIE C. WEBBER, PLAINTIFF-RESPONDENT,
v.
JAMES J. MCCORMICK, DEFENDANT-APPELLANT



Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[63 NJSuper Page 412] This case arises out of an intersectional collision between plaintiff's and defendant's automobiles. The county district court judge, sitting without a jury, granted judgment in plaintiff's favor in the sum of $450 for damage to her automobile under the first count

of the complaint, and $2,286.25, subsequently reduced to $2,000 on defendant's application for a new trial, as damages for her personal injuries under the second count, plus costs. Defendant appeals from that judgment.

Defendant urges several grounds for reversal and we shall consider them, together with the pertinent facts, in the order in which they are argued in his brief.

Immediately after the collision on July 4, 1957, plaintiff was removed to Overlook Hospital, where she remained until July 6 under the care of her personal physician, Dr. Eason. X-rays were taken at the hospital at his direction, and they became part of the hospital records. At the trial a Miss Henshaw, clerk in the Medical Records Department at Overlook, produced plaintiff's records. She had begun work at the hospital September 29, 1958, some 14 1/2 months after the accident. She testified she had been working in the record room continuously since then, had charge of the records and was familiar with them. She said these were original records, made by the doctors and nurses in the regular course of hospital operation, and that they had been filed in the record room. Examination of plaintiff's hospital records shows that Dr. Eason was the attending physician and had countersigned them.

The records were admitted in evidence over defendant's objection. He now contends this was error because the requirements of N.J.S. 2 A:82-35 had not been fulfilled. That statute, identical with the provisions of section 2 of the Uniform Business Records As Evidence Act, provides that:

"A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

There is little New Jersey authority concerning the admissibility of hospital records. Gilligan v. International Paper

Co. , 24 N.J. 230, 238 (1957); Petrosino v. Public Service Coord. Transport , 1 N.J. Super. 19, 25 (App. Div. 1948); and Opdyke v. Halbach , 123 N.J.L. 123 (Sup. Ct. 1939), throw no light upon our immediate problem. There can be no question that had Miss Henshaw been the record custodian at the time the records were made, her testimony would have constituted a sufficient foundation under the statutory requirements. The problem is that she was not employed by the hospital until more than a year after the accident.

A recent Missouri case construing an identical statute is in point. In Rossomanno v. Laclede Cab Co. , 328 S.W. 2 d 677 (Mo. Sup. Ct. 1959), a physician's office record was introduced by a receptionist-clerk who had been in his employ only one month. The record had been made some six years before. She testified as to the practice in the doctor's office during her employment, including sufficient facts to justify admission of records made during her employment. She further testified that from the appearance of the record she produced, her assumption was that it was similarly prepared by the physician in the regular course of his practice at or near the time of the event. There was an objection to the admission of this record in evidence because she could not qualify as custodian under the statute, since she did not of her own knowledge know how the particular record came into existence. The court disagreed, holding that:

"We cannot escape the conclusion that a witness may be competent to identify a business record and testify to the mode of its preparation even though he was not employed in the 'business' at the time the act, condition or event occurred or was recorded. The testimony of the witness as to the 'mode of preparation' need not be based on personal knowledge. This is in keeping with the last clause of section 490.680 which provides that the record shall be competent 'if, in the opinion of the court, the sources of information , method and time of preparation were such as to justify its admission.' * * *" (Italics the court's) (328 S.W. 2 d , at page 683)

Thus, said the court, the offering witness may tell what he knows or believes, based on subsequently gained knowledge

concerning the circumstances of the record in question. It is then a matter of discretion for the trial court to determine if such testimony adequately supports the conclusion that the record in question constitutes an admissible business entry. The policy dictating such a holding is obvious. Otherwise, as the court noted at 328 S.W. 2 d 682, "a new employee, even a permanent custodian, would be incompetent to qualify for admission in evidence any records ante-dating his employment regardless of how many years he continued to work because he could never acquire the necessary personal knowledge." The Rossomanno case expressly overruled more restrictive earlier state authority.

The Missouri court's interpretation of the section is sound and in accord with the authorities who advocate liberal construction in favor of admissibility of hospital records. See 6 Wigmore, Evidence (3 d ed. 1940), § 1707, p. 36; McCormick, Evidence , § 290, p. 609 (1954). Under the act the trial court has considerable discretionary power in determining whether "the sources of information, method and time of preparation" were such as to justify admission of the hospital records in evidence, and its ruling should not be disturbed except where there is a manifest abuse of discretion. Cf. Douglas Creditors Ass'n v. Padelford , 181 Ore. 345, 353-354, 182 P. 2 d 390 (Sup. Ct. 1947). We hold that Miss Henshaw's testimony justified the trial court's ruling that the general information given by her reasonably assured the reliability of the hospital records in question, and hence they were properly admissible. Moreover, Dr. Eason, who attended plaintiff within minutes after her admission to the hospital, testified fully as to the nature and extent of her injuries and the duration of her stay. This testimony was corroborative of the hospital record he had signed.

Defendant's reliance on the Pennsylvania case of Paxos v. Jarka Corp. , 314 Pa. 148, 171 A. 468 (Sup. Ct. 1934), is misplaced. That case ...


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