ARNOLD, Associate Justice.
This is an action brought on a life insurance policy to recover double indemnity under a provision making such double indemnity payable if the death of the insured resulted from "bodily injury effected solely through external, violent and accidental causes."
The insured was killed while a patient at Walter Reed General Hospital in Washington,
The first error claimed is that the trial court excluded the statement of a physician which was part of the proofs of death required to be furnished by the beneficiary. The statement contained the opinion that the insured committed suicide.
The trial court excluded the statement of opinion as to suicide after concluding from the record that the beneficiary had not authorized the submission of such a statement to the insurance company. It appeared that the insurance company had sent the physician (who was also the coroner) the form, which he had filled in. This was at the request of the beneficiary. But the court concluded that the beneficiary had not seen the physician's statement before it was transmitted to the company. It appeared that representatives of the company had assisted the beneficiary in completing the proofs of death, and had not called her attention to the fact that the physician's opinion as to suicide was inconsistent with her own statement that the death was accidental. It also appeared that the physician who made the statement had no personal knowledge of the cause of death. While the record as to all these circumstances is not clear, counsel for appellant failed to deny any of the court's conclusions of fact during the argument on the admissibility of the evidence.
On the basis of its conclusions of fact the court's ruling was correct. Ordinarily a statement by a physician submitted by the beneficiary of a policy as part of the proofs of death is admissible to show the manner of death.
"* * * the proofs presented were admissible as representations on the part of the party for whose benefit the policies were taken, as to the death and the manner of the death of the insured. They were presented to the company in compliance with the condition of the policy requiring notice and proof of the death of the insured as preliminary to the payment of the insurance money. They were intended for the action of the company, and upon their truth the company had a right to rely. Unless corrected for mistake, the insured was bound by them. Good faith and fair dealing required that she should be held to representations deliberately made until it was shown that they were made under a misapprehension of the facts, or in ignorance of material matters subsequently ascertained."
It is apparent from the above opinion that proofs of death are competent evidence of the cause of death only where the relevant statements contained therein are authorized by the beneficiary.
Appellant contends that the court erred in permitting plaintiff to introduce the claimant's statement and the friend's statement, which were part of the proofs of death, without offering the physician's statement. This was error because the proofs of death, if admitted at all, should have gone in as a whole. But the error
The second ground of error is the refusal of the trial court to admit in evidence the original records of Walter Reed General Hospital relating to the cause of the death of the insured. These records consisted of the following documents: (1) A history of the insured's admission to the hospital giving an account of his illness and his state of mind; (2) A diagnosis of insured's condition when he was admitted; (3) Reports on three operations performed in the hospital; (4) Reports of conversations with the insured indicating that he had attempted suicide; (5) Report of consultation with a psychiatrist containing statements by the insured that he wished to die; (6) Report of a psychiatrist showing a diagnosis of "psychoneurosis, hysteria, conversion type"; (7) Transcript of the proceedings and findings of the Board of Officers of Walter Reed General Hospital to determine the cause of the death of the insured.
The policy contained a waiver
"In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. * * *"
A literal reading of the above statute would make the records in this case admissible on the theory that the business of operating a hospital requires records of the histories of patients, reports of unusual conduct and also diagnoses by physicians. But the Supreme Court in Palmer v. Hoffman,
In this case the records are not offered to prove routine facts such as the date of admission to the hospital, the names of the attending physicians, etc. They are offered to prove the truth of accounts of events and of complicated medical and psychiatric diagnoses. The accuracy of such accounts is affected by bias, judgment, and memory; they are not the routine product of an efficient clerical system. There is here lacking any internal check on the reliability of the records in this respect, such as that provided for "payrolls, accounts receivable, accounts payable, bills of lading and the like." The Supreme Court has stated that the test of admissibility must be "the character of the records and their earmarks of reliability * * * acquired from their source and origin and
In Palmer v. Hoffman the record sought to be introduced was a report of a railway accident which was required by the rules of the railroad. Its exclusion was affirmed. While the case may be technically distinguished we think it stands for the general principle we have outlined above and that the rule of the court in excluding these hospital records is correct.
The final assignment of error is based on the instructions of the court as to the burden of proof. According to the terms of the policy the plaintiff had the burden of establishing that death was accidental in order to recover double indemnity. The evidence was such that the jury might have drawn the inference of suicide from all the circumstances. But the court adopted the theory that the presumption against suicide, based on the instinct of self-preservation, changed the burden of proof. It, therefore, instructed the jury that the burden was on the defendant to show by a preponderance of the evidence that the death of the insured was not the result of accident. An instruction placing the burden of proving accidental death on the plaintiff was refused.
This was error. The principle that a presumption such as the one against suicide shifts only the burden of going forward with the evidence, and does not change the ultimate burden of proof, is so well settled that it scarcely needs a citation of authority. The Supreme Court has specifically applied that principle to a suit to recover double indemnity on a life insurance policy where the issue was whether the insured committed suicide.
Reversed and remanded.
EDGERTON, Associate Justice.
I think hospital records are admissible under the federal shop-book rule.
In other respects I concur in the opinion of the court.
ARNOLD, Associate Justice.
The insured was found dead at the foot of a stairwell in Walter Reed Hospital.
The trial court rejected all these hospital records and though we reversed on another ground we upheld that ruling. Thereafter, this rehearing was granted confined to the question of whether the hospital records offered, or any part of them, were properly rejected. The records which seem to be most relevant to show a state of mind of the insured which might indicate suicide consist of two reports of a neuropsychiatric consultant and one report of an attending physician, based on information obtained from a nurse, that the insured took an overdose of medicine because he wanted to die. We will briefly analyze the contents of these records.
One of the psychiatric reports gives a history of what are termed "vague hypochondriacal complaints" over a period of twelve years. It recites the patient's inability to work, the fact that he had been only getting $37.50 a month, that he said he wanted to die because he had been suffering so much, that he had consulted twenty-five different doctors and had been in five hospitals prior to coming to Walter Reed, that he had hypochondriacal discomfort prior to the severe itching of the rectum which started in May, 1938. It closes with the following words: "Diagnosis: Psychoneurosis, hypochondriasis." This report was made after the patient had been in the hospital six months without responding to ordinary treatment.
Another report by the same neuropsychiatric consultant begins by reciting an experience told by the patient in the course of a psychiatric examination which might have contributed to a neurosis. It discloses that a year before the patient came to the hospital he had been given doped whiskey by a hitchhiker and indecently assaulted. Two weeks afterwards he noticed itching in the rectal area. This report closes with the following diagnosis:
"Neurological examination shows deep superficial reflexes normal and equal; cranial nerves intact; no disturbance in sensation other than the above described pruritus ani. At present patient shows no depression and no suicidal ideas. Appears cheerful, smiling and friendly. Has been seen by four or five psychiatrists previous to this hospitalization who said that all his troubles was in his imagination.
"Diagnostic impression: psychoneurosis, hysteria, conversion type."
No mention was made of the necessity for any special measures to prevent suicide.
We believe that the court properly rejected these hospital reports. For the purpose of proving suicidal intent they do not come within the Federal Shop Book Statute. It is clear from the legislative history of the Federal Shop Book Statute that it was intended to make it unnecessary to call as witnesses the parties who made the entries rather than to make a fundamental change in the established principles of the Shop Book exception to the hearsay rule. The report of the Senate Judiciary Committee incorporates the recommendation of the Attorney General, which reads in part as follows:
"The old common-law rule requires that every book entry be identified by the person making it. This is exceedingly difficult, if not impossible, in the case of an institution employing a large bookkeeping staff, particularly when the entries are made by machine. In a recent criminal case the Government was prevented from making out a prima-facie case by a ruling that entries in the books of a bank, made in the regular course of business, were not admissible in evidence unless the specific bookkeeper who made the entry could identify it. Since the bank employed 18 bookkeepers, and the entries were made by bookkeeping machines, this was impossible." S.Rep.No.1965, 74th Cong., 2d Sess., pp. 1, 2.
The report of the House Judiciary Committee is to the same effect. It sets out the recommendation of the Attorney General with the following introductory statement:
The remarks of members of the House Judiciary Committee explaining the bill show the same clear intent. Chairman Sumners said:
"The circuit judge, sitting as a trial judge, held that record books kept in the ordinary course, would not be admissible unless the Government produced the individual who had made the entry, who could testify with reference to the making of the entry, and so forth. Of course, according to the manner that books are now kept, many times entries are made by machines. It may be that a dozen or a half a dozen people will make entries in a set of books and nobody will be able to swear that he made a given record.
"Personally, I am ashamed to ask the House to pass this bill. This holding by the judge is ridiculous. It is more than that, but that is the situation that has developed up there. I do not understand how any judge can hold, in view of what is generally accepted, that one must bring the identical person who made the identical entry, before that entry can be introduced in evidence where the books kept are regularly and properly kept in the ordinary course of business. But he has held it, and this bill has been introduced for the purpose of curing that situation." (V. 80, 5733. Apr. 20, 1936)
Congressman Duffy of the Committee made the following comment:
"* * * section 1 which enlarges the exception to the hearsay rule relating to the admissibility of business records. That section removes the obsolete common-law requirement that business entries be identified by the persons who made them. * *" Vol. 80, 9647.
The records offered here are not the kind of entries which are admissible under the established principles of the Shop Book exception to the hearsay rule. Such records must be those which are a product of routine procedure and whose accuracy is substantially guaranteed by the fact that the record is an automatic reflection of observations.
Hospital records are no different from any other kind of records kept in the regular course of business. They must be subjected to the same tests as to subject matter. Regularly recorded facts as to the patient's condition or treatment on which the observations of competent physicians would not differ are of the same character as records of sales or payrolls. Thus, a routine examination of a patient on admission to a hospital stating that he had no external injuries is admissible.
If this were not true, a newspaper reporter's notes on an interview or observation of an accident would be admitted in evidence without calling the reporter himself. Certainly they are made in the regular course of business of running a newspaper, as that phrase is colloquially used, since they are the basis of the accounts which are afterwards printed. Newspaper reporters are certainly as skilled in observation as any other group and ordinarily have no motive to misrepresent. Corporations today keep a vast mass of records, all of which are used as the basis for management action. All such records would be admissible in evidence if the kind of psychiatric diagnosis and hearsay accounts offered here were ruled admissible. A few hypothetical cases will illustrate the distortion of the common law rule which would occur if the contentions of appellant regarding the admissibility of the above described psychiatric diagnosis and report of conversations were upheld.
(1) A corporation is engaged in taking a nationwide poll as to the number of members of the Communist party. In the regular course of that business its employee interviews X, Y and Z. The interviewer reports that X, Y and Z are Communists, giving excerpts from the conversations to support this opinion. The report would be admissible in subsequent litigation to make a prima facie case that X, Y and Z are Communists
(2) A research foundation is engaged in determining the amount of insanity in Washington, D. C. A trained psychiatrist sends in a record that John Doe is insane. Since this record was made in the regular course of the business of the research foundation it would be admissible without calling the interviewer in order to make a prima facie case in a subsequent contest of John Doe's will.
(3) A large corporation employs a firm of efficiency engineers to investigate its personnel. In the regular course of that investigation the report is made that employee X is willfully insubordinate, supported by excerpts from his conversation. The efficiency firm has no interest in or probable cause for litigation with X. The report, therefore, would be admissible against X in a suit for breach of his employment contract without calling the man who made it.
These are extreme cases but there seems no logical escape from the above results if the conjectures and conversations contained in the hospital records which I have described above are held admissible.
It is no reflection upon the profession of psychiatry to say that it necessarily deals in a field of conjecture. Even in the diagnosis of actual insanity, cases are rare in which trained psychiatric witnesses do not come to opposite conclusions. The opinions here relate to neurosis, a condition short of insanity, on which there are countless theories and infinite diagnostic possibilities. It is difficult to conceive of records in which the right of cross-examination is more important than the conjectures
The drastic impairment of the right of cross-examination resulting from the admission of this type of unsworn observation and opinion evidence will be recognized by anyone familiar with the psychology of a jury trial. The unsworn psychiatric diagnosis would be introduced, with appropriate fanfare as to the distinguished character of the alienist who made it, but who is not called as a witness. The opposing party might have plenty of data to shake this testimony on cross-examination, yet he would have to remain silent while a strong prima facie case is made against him. The risk of perjury would be neatly avoided because the real witness is not sworn.
It is true that after the party who introduced such opinions has closed his case the opposing party would have a chance to rebut them. But the disadvantageous position in which the denial of his right of cross-examination would place him is obvious to any trial lawyer. A period of time has gone by; an impression on the jury has been made. The expensive and sometimes impossible burden of hunting out and producing the psychiatrist who gave the opinion is unjustly shifted to the party against whom the opinion is used. And after he catches and produces the psychiatrist he must offer him as his own witness — a disadvantage only slightly limited by the fact that the trial court may in its discretion allow him to impeach his own witness. Only a lawyer without trial experience would suggest that the limited right to impeach one's own witness is the equivalent of that right to immediate cross-examination which has always been regarded as the greatest safeguard of American trial procedure.
These considerations apply with equal force to the hospital records offered below which disclose that the patient said he took an overdose of codein and aspirin because he wanted to die. This remark was retold by the nurse to the attending physician and recorded by him. It is contradicted by another conversation with the same physician, also part of the record, in which the patient said he only wanted to get relief from itching. The record that the patient took an overdose was a routine entry of a fact on which observers would not differ. But the excerpts from the patient's conversation reported by a nurse are no different from a newspaper reporter's account of an interview. They are made in the regular course of business in the colloquial sense but not as that term is intended for use by statute. The consequence of the position taken by Judge Edgerton would be that the mere absence of an apparent motive to misrepresent makes admissible any and all business records which are regularly kept regardless of their character. This, we believe, is a legislative change in the Shop Book Rule which is not permitted by the statute. Of course it is true that in an occasional case the presence of an unusually strong motive to misrepresent may exclude an entry otherwise admissible under the rule.
In other words, it is not the absence of a motive to misrepresent which is the basis of the Shop Book exception to the hearsay rule. Purely clerical entries come within the rule regardless of the fact that the party making them has an interest in what they may be used to prove. Conversely where the accuracy of the entries depends on opinion, conjecture or judgment in selecting the particular entries from a larger mass of data which some other observer might consider equally relevant, the entries are not within the Rule regardless of motive.
The reasons for the Shop Book Rule are well stated by Wigmore
Today every great corporation is making thousands of records, obtaining credit information, making psychological examinations of its employees, hiring efficiency experts and recording the activities of its personnel. To admit this potpourri on the sole tests of regular recording and absence of motive to misrepresent would be a drastic impairment of the right of cross-examination. In a criminal case it is doubtful whether such a deprivation of the right of the accused to be confronted with the witnesses against him would be constitutional.
The entire hospital records offered in this case are not before us. It may be that some of the entries are admissible. The test should be whether they are records of a readily observable condition of the patient or of his treatment. There is no magic in the word diagnosis which makes everything which can be included in that term admissible. Some diagnoses are a matter of observation, others are a matter of judgment, still others a matter of pure conjecture. The admissibility of records of such diagnoses must depend upon their character. Certainly the hearsay accounts and the psychoneurotic conjectures contained in these records cannot be received without cross-examination as proof of a tendency to commit suicide.
Reversed and remanded.
EDGERTON, Associate Justice (dissenting in part).
The insurance company offered the following hospital records, with proof that
Appellant, the insurance company, now concedes that the rejection of the sixth item was correct. That question, therefore, is not before us. Some of the disputed items are quoted in the transcript; others are merely described. In my opinion the quoted items should have been admitted. So far as the character of the others can be judged from their descriptions, I think they also should have been admitted.
The federal Shop Book Rule, an Act of Congress, provides: "In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term `business' shall include business, profession, occupation, and calling of every kind."
The Shop Book Rule is an exception to the hearsay rule. Its purpose is to avoid the necessity of identifying, locating and calling numerous witnesses. Its chief drawback is that it prevents the opposing party from cross-examining them. The Supreme Court has recently stated its purpose and its principle. An enterprise, the Court said in Palmer v. Hoffman, commonly "entails the keeping of numerous books and records essential to its conduct or useful in its efficient operation. Though such books and records were considered reliable and trustworthy for major decisions in the industrial and business world, their use in litigation was greatly circumscribed or hedged about by the hearsay rule — restrictions which greatly increased the time and cost of making the proof where those who made the records were numerous. * * * It was that problem which started the movement towards adoption of legislation embodying the principles of the present Act. * * * And the legislative history of the Act indicates the same purpose." The basis of the Rule is "the probability of trustworthiness of records because they were routine reflections of the day to day operations of a business. * * * `Regular course' of business must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business."
The routine records of hospitals are within the literal meaning of the Rule. That they are within the intent of Congress is shown by the fact that two of the cases cited in the committee reports involve such records.
The Courts of Appeals of both the Second and Third Circuits have held that hospital records are admissible under the federal Shop Book Rule.
The Rule covers records of an "act, transaction, occurrence, or event." Any development in, and any manifestation of, the patient's mental or physical condition is an occurrence or event. Observation, diagnosis, and treatment also are acts, occurrences, or events. Accordingly records of condition, diagnosis and treatment, made in the regular course of business, when the regular course requires them to be made within a reasonable time after the event, are admissible under the Rule so far as they are relevant. Usually, and in the present case, diagnosis involves opinion. But even before the Shop Book Rule was enacted this court had held that records of the "opinions" as well as the "observations" of medical officers were admissible.
It is of course true that psychiatric diagnosis is subject to error, that cross-examination is an invaluable aid in exposing error, and that the Shop Book Rule avoids cross-examination. But the argument that records of psychiatric diagnosis should therefore be excluded from the operation of the Rule proves too much. For records of the simplest observations of the most objective facts, which are conceded to be admissible under the Rule, are also subject to errors which cross-examination, if it were available, might expose. The alleged observer may have had no opportunity, or no adequate opportunity, to observe, or he may have made no effort to observe, or he may have made only a casual and ineffective effort. He may have been either permanently or temporarily incapable of accurate observation. He may have observed one thing and either carelessly or intentionally recorded a different thing. None of these circumstances is likely to appear upon the record. Any of them might be disclosed by cross-examination. The Shop Book Rule, by denying opportunity for cross-examination, imposes no greater disadvantage on the litigant who is adversely affected by a record of a psychiatric diagnosis than upon a litigant who is adversely affected by a record of the contents of a freight car. Rather, the disadvantage is likely to be less, for counsel are commonly less competent to attack expert testimony than lay testimony, and the expert witness is commonly more competent than the layman to defend himself.
When the Rule admits in evidence the record of an "act, transaction, occurrence, or event" it does not do so for every purpose. It admits the record "as evidence of said act, transaction, occurrence, or event." Since the making of a statement is an act or event, a record that the patient made a certain statement is admissible as proof that he did so if his doing so is relevant, if the record is made in regular course, and if the regular course requires the record to be made within a reasonable time. The mere making of any statement which tends to indicate a depressed frame of mind is relevant to the issue of suicide. Whether a record of a patient's statements may be used not only as proof that he made them but also as proof that they are true
Before any writing is admitted in evidence under the Shop Book Rule there are three preliminary questions of fact to be decided. (1) Was the writing "made as a memorandum or record of any act, transaction, occurrence or event"? (2) Was it "made in the regular course of any business"? (3) Was it the regular course to make the record "within a reasonable time"? Like other preliminary questions of fact upon which the admissibility of evidence depends, these are questions for the judge. In interpreting and deciding them he has a considerable power to prevent abuse of the Rule. The recent case of Palmer v. Hoffman illustrates this. There the Supreme Court found that the Rule did not admit a railroad engineer's reports of accidents, because such reports "are not for the systematic conduct of the enterprise as a railroad business. * * * Their primary utility is in litigating, not in railroading."
It is true that in declining, in the Palmer case, to admit a report which was made for defensive purposes the Supreme Court said: "Such a major change which opens wide the door to avoidance of cross-examination should not be left to implication."
I think this court is in error in citing Wigmore, § 1522, as supporting its view that the Shop Book Rule admits only "observations which do not depend on opinion * * *."