In this action Alfred D'Amato sought to recover for personal injuries sustained in a collision between an automobile driven by him and a trailer truck owned by the defendant J. A. Garvey Transportation, Inc., and operated by the defendant Johnston. The collision occurred on route 1 in the town of Orange on March 21, 1950. The other plaintiff, Rachel Riccio, was the owner of the car driven by D'Amato and she sued for property damage to it. The answer denied the allegations of negligence and alleged contributory negligence, one specification of which was that D'Amato was driving while under the influence of intoxicating liquor. The jury returned a verdict for the defendants and from the judgment rendered thereon this appeal has been taken. The principal question is whether the court erred in admitting in evidence certain portions of D'Amato's hospital record which stated that he was intoxicated.
The defendants claimed that these entries in the hospital record were admissible under § 7903 of the General Statutes, relating to the admissibility of business entries, which is set forth in the footnote.
Section 7903 is substantially identical with statutes adopted in a number of other jurisdictions, all of which stemmed from a report by a committee of the Commonwealth Fund of New York made in 1927. Another group of states have adopted the Uniform Act on Business Records, which was recommended in 1936 by the National Conference of Commissioners on Uniform State Laws and is designed to accomplish the same end. 5 Wigmore, Evidence (3d Ed.) p. 362. The cases are in considerable confusion as to the applicability of these statutes to various kinds of business entries, including hospital records. 6 Wigmore, op. cit., § 1707.
Connecticut, in line with most, if not all, jurisdictions which have similar statutes, is definitely committed to the proposition that hospital records are business entries under the statute. We so held in Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 99, 3 A.2d 224. It is there recognized, however, that the
One group of cases holds that an entry which expresses an opinion, and particularly that of an expert, is not admissible, at least until the qualifications of the entrant to express the opinion and the facts upon which his conclusions are based have appeared in evidence. Lane v. Samuels, 350 Pa. 446, 450, 39 A.2d 626; Stone v. Goodman, 241 App. Div. 290, 297, 271 N.Y.S. 500. On this basis, in the Lane case, supra, the court excluded a portion of a hospital record which read: "Impressions ... Acute and chronic alcoholic intoxication." This, however, is not the law in this state. The making of a diagnosis certainly involves the formulation of an expert opinion, and yet we have said that the entry in a hospital record setting forth the diagnosis of a patient's illness is an entry which is admissible. Borucki v. MacKenzie Bros. Co., supra, 102. Moreover, under our law the statement that a person is intoxicated is not so much the expression of an opinion as it is the statement of a conclusion drawn from observation. "The condition of intoxication and its common accompaniments are a matter of general knowledge." State v. Jones, 124 Conn. 664, 667, 2 A.2d 374. The entries in the hospital record in the present case to the effect that D'Amato was intoxicated were not inadmissible on the ground that they were records of the entrant's opinion.
The Johnson case held that so much of the report of a police officer as contained statements made to him by witnesses of an accident was not admissible under the statute. The court (p. 128), after referring to the fact that the officer was not present at the time of the accident but made his memorandum from hearsay statements of third persons who happened to be at the scene when he arrived, stated that the legislature in enacting the statute did not intend "to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto." This accords with our law. To be admissible, the business record must be one based upon the entrant's own observation or upon information transmitted to him by an observer whose business duty it was to transmit it to him. The principle, however, does not render inadmissible the entries in question in the case at bar. It is apparent that those entries were made as a result of the direct observation
A third group of cases which at least affords some ground for an argument that the entries in question were inadmissible stems from Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L. Ed. 645. In that case, it was held that a locomotive engineer's report to his employer concerning a grade crossing accident in which the plaintiff was injured was not admissible under the federal business entries statute. The decision rests upon the essential nature of the provision of the statute that the entry must be in the regular course of a business. The opinion points out (p. Ill) that the business of the engineer's employer was the operation of a railroad. It goes on to say (pp. 113, 114): "An accident report may affect that business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls. The conduct of a business commonly entails the payment of tort claims incurred by the negligence of its employees. But the fact that a company makes a business out of recording its employees' versions of their accidents does not put those statements in the class of records made `in the regular course' of the business within the meaning of the Act .... If the Act is to be extended to apply not only to a `regular course' of a business but also to any `regular course' of conduct which may have some relationship to business, Congress not this Court must extend it." In short, the case makes a distinction between entries which contain information
The real business of a hospital is the care and treatment of sick and injured persons. It is not to collect and preserve information for use in litigation. Accordingly, even though it might be the custom of a hospital to include in its records information relating to questions of liability for injuries which had been sustained by its patients, such entries, under the doctrine of the Palmer case, supra, would not be made admissible by the statute unless they also contained information having a bearing on diagnosis or treatment. Recognition of this distinction has resulted in the exclusion of portions of hospital records in a number of cases. New York Life Ins. Co. v. Taylor, 147 F.2d 297, 300; Ipsen v. Ruess, 239 Iowa 1376, 1384, 35 N.W.2d 82; Valenti v. Mayer, 301 Mich. 551, 557, 4 N.W.2d 5; Green v. Cleveland, 150 Ohio St. 441, 443, 83 N.E.2d 63; Leed v. State Workmen's Ins. Fund, 128 Pa.Super. 572, 576, 194 A. 689. On the other hand, where the entry in a hospital record is pertinent to the care or treatment of a patient, it is admissible. Caccamo's Case, 316 Mass. 358, 362, 55 N.E.2d 614.
In the present case, therefore, the question is whether the fact that D'Amato was intoxicated when he entered the hospital was relevant to a proper diagnosis of his injuries and a proper treatment of them. The statute provides that an entry shall be admissible "if the trial judge shall find that it was made in the regular course of any business." This means that the relevancy of the entries concerning D'Amato's intoxication to the hospital's business was a preliminary question of fact for the trial judge
On the whole case, therefore, we conclude that the entries concerning D'Amato's intoxication contained in the hospital records are within the category of business entries made admissible in evidence by § 7903.
The second ground of objection of the plaintiffs, i.e., that the admission of the entries precluded them from cross-examining the persons who made the entries, has no merit. The statute expressly provides that business entries which are admissible under it shall not be rendered inadmissible by reason of the failure to produce as witnesses the persons who made them. It contemplates, therefore, that there need be no opportunity afforded to cross-examine those who made the entries if as a matter of fact the entries are admissible as business entries under its provisions.
The plaintiffs also assigned as error the admission of another portion of the hospital record at which a check mark appeared in a box labeled "No" opposite "Liab. Case." This item in the record was not called to the trial court's attention and no objection was made to its admission on the trial. Consequently, we do not consider this assignment of error. Practice Book § 155.
The assignments of error directed at the charge are without merit.
There is no error.
In this opinion the other judges concurred.