Cassidy v. Cincinnati Traction Co.

May, J. Motion for new trial. ■ •' This was an action for personal injuries against tbe defendant company for negligently running down tbe plaintiff at a street crossing. The jury, by unanimous verdict, found for defendant. The principal error complained of is tbe admission over objection of plaintiff of tbe record of tbe Cincinnati Hospital, showing tbe admission of tbe plaintiff on .a Saturday night, with tbe diagnosis, 1 ‘ Acute Alcoholism, ’ ’ and bis discharge the following morning. The clerk of tbe hospital, in whose charge the record was, testified that he was familiar with the handwriting of the receiving physician who made the same and that the physician was not in the state and had left for parts unknown. [126] The plaintiff contends that the record was not a public document or a public record, because there was no legislative authority for the keeping of such a record, and cites in support of his contention, Fondi v. Boston Mut. L. Ins. Co., 224 Mass., 6, 8; Richmond v. Patterson, 3 Ohio, 369; Durfee v. Abbott, 61 Mich., 471. The Massachusetts and one of the New York cases sustain the contention of the plaintiff; the other casts are easily distinguishable from the case at bar. , ... I am of the opinion that there is legislative authority for the keeping of such a record, making it a public record. Section 4021, General Code, provides that the council of each municipality annually may levy and collect .a tax to maintain a frek public hospital; and Section 4035, General Code, provides that the director of public safety shall have the entire management and control of such hospital, and shall establish rules for its government, and the admission of persons to its privileges. The evidence of the clerk was to the effect that there was a'- rule requiring the receiving physician to report a history of the case and his diagnosis. It therefore seems to me that these statutory provisions taken together with the rule of the director of public safety malee the record admitted in the evidence, over the plaintiff’s objection, a public document in the sense in which that term is used in the cases. If, however, such a record is not a public document within the usual meaning of that term, I am of the opinion that the record was one made in the usual course of business by the receiving physician, and as part of his duties and therefore was admissible, proper proof having been produced that it was in his handwriting, made by him in the usual course; and that he was absent from the state, under the general rule that entries or records made in the usual course of business by one whose duty it is to make the same, are exceptions to the hearsay rule. See Wigmore on Evidence, Sections 1521 and 1522, arid cases cited. Even if there was error in the admission of this record, I do not'think it was prejudicial error, when the whole record in this case- is taken into consideration. ■ • - For these reasons the motion will be overruled.