Schuhle v. Cunningham — 8 N.Y. St. Rep. 96

Majority

p. 96

Rosa Schuhle, Resp't, v. Daniel Cunningham, App'lt.

(New York Superior Court, General Term,

Filed April 13, 1887.)

Headnote

Evidence—Memoranda of deceased physician—When incompetent.

In an action for the recovery of damages on account of personal injuries from the falling of a pole, the entries of the physician in a book kept by him as to plaintiff's condition, were put in evidence. The physician died before the trial. It was not shown when the entries were made. Held, that it was error to admit them in evidence until they were proved to have been made at or about the time the fact referred to occurred.

Appeal by defendant from judgment entered upon verdict for plaintiff, and from order denying motion for new trial made upon the minutes.

Appeal by defendant from order denying motion for new trial made at special term upon the case as settled and .affidavits.

George Bethune Adams, for app’lt; Ira Leo Bamberger, for resp’t.

The action was for damages from the •alleged negligence of the defendant.

The plaintiff was a tenant of defendant. She claims that

p. 97

a heavy pole that the defendant was bound to keep firm and safe, fell upon her. As part of her proof against defendant’s objection, she was allowed to put in evidence entries in a book kept by her physician, who had died before the trial. The entries were as follows:

“ Mrs. Rosa Schuhle, 752 Second avenue, was hurt on the seventh of January. Found her suffering, ’pain in side; found ribs broken; shoulder on left side was disabled; also left parietal was contused; was deaf on left side; could only hear watch six inches to eighteen inches on the right side; she had intense headache, and acted very nervously.

“I returned that night and found her spitting blood, the ribs having pressed against.

“March 19. Bled from nose profusely.”

This was all in the handwriting of the physician.

The objection was, in general, to the competency of the entries as testimony. I think the general objection was sufficient.

The entries were the declarations of a person not sworn upon the trial and offered for cross-examination.

The plaintiff was bound, in order to be entitled to their admission, to prove all the conditions which the" law affixes to their admissibility. One of these conditions is, “the entry must have been made at or about the time of the transaction recorded.” Greenleaf Ev., section 115.

The entry did not disclose when it was made. Indeed part of it indicated that it was made after the fact referred to was declared to have occurred. Take it altogether, it seemed to be a condensed history of observations made in times that had passed.

No testimony was given dehors the book, that tended to show that the entries in it were made by the physician contemporaneously with the meetings of the physician and the plaintiff.

On the argument of the appeal, there was no discussion of whether the rule, admitting entries made by the deceased persons in the course of a professional duty, included matters like those in the present controversy.

For the reason that has been given, the judgment and order made upon the minutes should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

The notice of motion for a new trial, made upon the case as settled, did not specify any grounds. The ground stated was that it appeared by affidavits that the testimony given by the plaintiff was false, especially as to the extent of her pretended injuries and that on a new trial testimony could be produced that would show the falsity.

p. 98

The learned judge properly held that the defendant, by the use of ordinary diligence, could have produced on the trial the testimony that was said to have been newly discovered, and that the issues as made called upon him to produce all the testimony he could procure.

The order appealed from should be affirmed, with costs to the respondent to abide the event.

Dugro, J., concurs.