WILBUR COWAN vs. JOHN M. MCDONNELL (and a companion case ).

WILBUR COWAN vs. JOHN M. MCDONNELL (and a companion case [Note 1]).

330 Mass. 148

November 6, 1952 - April 7, 1953

Suffolk County

Present: QUA, C.J., LUMMUS, SPALDING, WILLIAMS, & COUNIHAN, JJ.

At the trial of an action for an assault where a record of a city hospital of the treatment and medical history of the plaintiff after the alleged assault was admitted in evidence under G. L. (Ter. Ed.) c. 233, Section 79, as amended, it was error not to allow the words in such record "impression, odor of alcohol" to be read to the jury.

TWO ACTIONS OF TORT. Writs in the Superior Court dated May 27, 1947.

At the trial before Swift, J., there were verdicts for the plaintiff. The defendants alleged exceptions.

William L. Baxter, Corporation Counsel, & Joseph Graglia, Assistant Corporation Counsel, for the defendants, submitted a brief.

Herbert L. Barrett, (John J. Mackin with him,) for the plaintiff.

COUNIHAN, J. These are two actions which were tried to a jury together with Cowan v. Eastern Racing Association, Inc. They arose out of an alleged assault on this plaintiff by these two defendants. The circumstances of the alleged assault are recited in the opinion in Cowan v. Eastern Racing Association, Inc., ante, 135.

During the trial the defendants in these actions introduced through the custodian of records of the Boston City Hospital a record of the treatment and medical history of the plaintiff shortly after the alleged assault. Part of this record contained the words "impression, odor of alcohol." Subject to the exceptions of the defendants the judge excluded the reading of these words to the jury. These exceptions present the only matter for our consideration.

Page 149

There was error in the exclusion of this testimony.

General Laws (Ter. Ed.) c. 233, Section 79, as amended, controls the admissibility of hospital records. So far as pertinent, it reads, "Records kept by hospitals under section seventy of chapter one hundred and eleven shall be admissible . . . so far as such records relate to the treatment and medical history of such cases . . . but nothing therein contained shall be admissible as evidence which has reference to the question of liability" (emphasis supplied).

General Laws (Ter. Ed.) c. 111, Section 70, as amended, so far as pertinent reads, "Hospitals supported in whole or in part by contributions from the commonwealth or from any town . . . shall keep records of the treatment of the cases under their care and the medical history of the same."

The Boston City Hospital as its name implies is obviously a hospital as described in c. 233, Section 79, which was required to keep records under c. 111, Section 70.

The question of the admissibility of the excluded words is governed by Leonard v. Boston Elevated Railway, 234 Mass. 480 . That case was an action of tort for personal injuries arising out of an accident and it was held that the words "Odor of alcohol on breath" in the records of treatment of the plaintiff at the Cambridge City Hospital after the accident, were properly admitted. After discussing statutes which were forerunners of c. 233, Section 79, at pages 482-483 the court said, "In our opinion a reasonable and practical construction of the statute requires that a record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability. . . . We are unable to say as matter of law that the [words] `Odor of alcohol on breath' could not relate to the plaintiff's medical history." Bilodeau v. Fitchburg & Leominster Street Railway, 236 Mass. 526 , 540. Clark v. Beacon Oil Co. 271 Mass. 27 . Burke v. John Hancock Mutual Life Ins. Co. 290 Mass. 299 , 304-305.

Exceptions sustained.

FOOTNOTES

[Note 1] The companion case is by the same plaintiff against Salvatore J. Ingenere.