Opinion
James B. Radetsky, David A. Fogel, Denver, for plaintiff-appellant.
Burnett, Horans&sHilgers, William P. Horna, Denver, for defendant-appellees.
STERNBERG, Judge.
This is an appeal by the plaintiff in a personal injury action in which she alleges that the amount of the judgment entered on a jury verdict in her favor, following a directed verdict on liability, was inadequate. As grounds for reversal she urges that an intern's report contained in a hospital record was improperly used during cross-examination of the treating physician, that defendant's closing argument was improper, and that the damage award was contrary to the evidence. We disagree with her contentions, and affirm the judgment.
I.
Plaintiff's automobile was struck from the rear by defendant's vehicle causing personal injury and property damage. Following the accident she was examined by her physician. Two days later, she was admitted to the hospital and was given a pre-admission examination by an intern.
At the time of trial, plaintiff's attorney subpoenaed the hospital records. Although the parties stipulated that the records delivered in response to the subpoena were 'authentic,' they were never introduced into evidence and, thus, are not a part of the record on appeal. During his testimony, the treating physician referred to some parts of these records to refresh his recollection. Defendant used another part of the hospital records, the report of the admitting intern, as the basis of his cross-examination of the treating doctor.
The treating doctor had testified that when he performed the Lasegue leg raising test on the plaintiff, the results were positive, while the intern's report of his administration of that test showed a negative result. Also, the intern's report stated that plaintiff did not complain of pain, contrary to what the treating physician's examination report and testimony showed. Thus, the contents of the intern's report, including the results of certain tests and the medical history taken from the patient, were brought before the jury.
Defendant urges that his cross-examination was proper since the hospital records themselves are admissible pursuant to the Uniform Business Records Act, 28 U.S.C. s 1732(a), as made applicable in Colorado by C.R.C.P. 43(a). We agree. The statute states in pertinent part:
'(A)ny writing or record, whether in the form of any 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 such act, transaction, occurrence, or event, if made in regular course of any business, and if 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.'
However, while this statute applies to hospital records and obviates the hearsay objection to them, Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328 (reversed on other grounds in Brady v. Citys&sCounty of Denver, Colo., 508 P.2d 1254), the statute itself contains certain criteria which must be met before hospital records can be admitted, E.g., that there must be proof that the record was made in the regular course of business.
It is not completely clear from the record that the stipulation of the parties as to 'authenticity' was meant to indicate compliance with the requirements of the Uniform Act. Following that 'stipulation,' a colloquy took place casting doubt on counsels' understanding of its scope. However, on cross-examination the treating physician's testimony did authenticate the intern's report. This testimony included statements that the witness was chairman of the Department of Medicine at the hospital; the intern was a graduate of a 'medical or osteopathy school'; a pre-admission examination and the taking of a medical history by an intern are regular procedures of the hospital; and the staff physicians, without necessarily agreeing with them, 'judged (intern's reports) as a pretty good cross section of their findings.' Thus, we conclude that this portion of the hospital record could have been received into evidence based upon the language of the Uniform Act, the stipulation of the parties, and authenticating testimony of the treating physician. See Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022; 40 Am.Jur.2d Hospitals and Asylums s 43. As a corollary to this conclusion, we hold that the trial court correctly permitted cross-examination of the treating physician by reference to the contents of the intern's report.
II.
Plaintiff also contends that inflammatory remarks, not based upon the evidence, made by the defendant's attorney during closing argument are grounds for reversal. Defendant's attorney stated in reference to the plaintiff:
'(S)he has been voluntarily unemployed because she is bound and determined to her best interest and with the advice and counsel of Dr. Radetsky and with the advice and counsel of James B. Radetsky that financial gain may be more easily secured in pursuing her litigation rather than in pursuing her employment.'
Other similar statements were made in the course of the closing argument. However, Dr. Radetsky had testified that he advised plaintiff not to return to work for medical reasons, and there is no testimony or evidence that attorney Radetsky had given such advice. Thus, these statements were not supported by any evidence in the record.
Comments such as these are in improper appeal to passion and prejudice. As stated in Cherry Creek National Bank v. Fidelitys&sCasualty Co., 207 A.D. 787, 202 N.Y.S. 611:
'The rule confining counsel to legitimate argument is not based on etiquette, but on justice. Its violation is not merely an overstepping of the bounds of propriety, but a violation of a party's rights.'
See also C.R.C.P., App. C. Code of Professional Responsibility, DR 7--106(C) (1).
However, no objection was made to the remarks at the time of argument, and no motion for a mistrial was made until after the jury had returned its verdict. Therefore, we cannot say as a matter of law that the trial court abused its discretion in failing to grant a new trial. See Citys&sCounty of Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348; and spears Free Clinics&s Hospital for Poor Children v. Maier, 128 Colo. 263, 261 P.2d 489. III.
Plaintiff's final contention is that the damages awarded were inadequate based upon the evidence. She alleges that her medical expenses, property damage and loss of earnings totalled $7,793.86. Thus, she argues the jury verdict of $4,736.57 was patently inadequate and the result of passion and prejudice caused, in large degree, by the matters urged as grouns for reversal in the first and second portions of this opinion.
The major thrust of defendant's case, however, was that most of the alleged damages were not causally related to the accident. Competent evidence on this issue consisting of medical and other testimony was adduced. The verdict indicates that the jury accepted defendant's evidence, and chose not to believe plaintiff's. Weighing conflicting evidence is the function of the trier of facts, not the appellate court. See Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999.
Judgment affirmed.
RULAND and Van CISE, JJ., concur.