Lusardi v. Prukop

WARD, J.,

pro tem.

These are actions for personal injuries consolidated for trial wherein judgments were entered for each plaintiff. The cases have likewise by stipulation been consolidated on appeal.

Defendant Prukop filed a cross-complaint against the plaintiff Noles wherein he claimed damages. During the trial plaintiffs deemed it material to establish the particular hospital to which defendant had been taken after the accident. Accordingly witness Monahan, the storekeeper of the Central Emergency Hospital in San Francisco, who had charge of the records of all emergency hospitals in San Francisco, “when the books are filled up” was called as a witness. He testified that the records were correct but it was clearly demonstrated that Monahan had reference simply to the fact that it was a record containing the names of patients. There was no testimony that the entries were made under the witness’ direction or supervision or that he recognized the handwriting or even knew the party or parties who had made the various entries. The evidence does not disclose whether these entries were made by any person in the performance of a duty enjoined by law (see sec. 1920, Code Civ. Proc.) or under the direction or in the presence of an officer of any board authorized to make such entries (see sec. 1926, Code Civ. Proc.). Respondent contends that the only purpose of the introduction of this evidence was to determine if Prukop had been admitted to the Mission Emergency Hospital. Without laying the proper foundation this evidence was admitted. Up to this point defendant was not prejudiced though the objection to the introduction of the record and the testimony of the witness

[508]

Monahan should have been sustainéd. Plaintiff’s attorney pressed the matter further after eliciting the residence of the defendant, the time of his arrival, etc., by asking the following question: “What dó you find in that book of the record that is made there of the condition of John Prukop when he was brought into the hospital.” This question brought forth an objection that “no foundation has been laid and that it is hearsay evidence” to which the court agreed. Later, the following appears in the transcript: “Q. The condition of the patient. A. The condition of the patient in the book is alcoholic breath’.” Counsel for defendant moved to strike out the answer, assigned the asking of the question as misconduct, and requested the court to instruct the jury to disregard the testimony. Further on the witness repeated “Condition of patient. Alcoholic breath.” Again counsel for defendant repeated his objection motion, etc., and the court commented as follows: “As far as it goes, the testimony does not hurt you, as far as it goes now.” Respondent contends that if it was error to admit this evidence it was cured by the statement of the court. The court is not permitted to comment upon the weight of the evidence. Respondent further contends that the witness did not testify that the defendant had an alcoholic breath but that the record book stated that defendant had an alcoholic breath; that it was not hearsay evidence from the witness but a fact from the record. The answer to this contention is that the record was hearsay. When evidence of a descriptive physical condition borders upon opinion evidence cross-examination should be permitted. The defendant in this case was precluded from interrogating the person who wrote in the hospital record the fact or opinion that the defendant had an alcoholic breath.