Fox v. Peninsular White Lead & Color Works

52 N.W. 623, 92 Mich. 243, 1892 Mich. LEXIS 858
CourtMichigan Supreme Court
DecidedJune 10, 1892
StatusPublished
Cited by5 cases

This text of 52 N.W. 623 (Fox v. Peninsular White Lead & Color Works) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fox v. Peninsular White Lead & Color Works, 52 N.W. 623, 92 Mich. 243, 1892 Mich. LEXIS 858 (Mich. 1892).

Opinion

McGrath, J.

This case was before this Court in January, 1891, and • is reported in 84 Mich. 676, to which reference is made for a statement of the facts. On the second trial plaintiff recovered a judgment, and defendant appeals.

It appears that for some time after the injury plaintiff was at the Wayne county poor-house. On the trial plaintiff offered in evidence the following poor-master’s ticket:

“Detroit, July 28, 1888.
To the keeper of the Wayne countyJiouse:
“Please admit John Fox to the Wayne county poorhouse, and provide for his necessities as a city charge.
“John F. Martin, “Superintendent of the Poor.”
Upon the back of this ticket is the following indorse.ment:
“This man was ill with arsenical poisoning at Harper Hospital, from which he was discharged on June 80. Shortly after he was affected with paralysis and anmsthcesia of the feet, due to the same cause, and, being unable to earn his living, is now sent to you for treatment. “ H. Erickson, City Physician.”

Defendant’s counsel objected to the admission of both ticket and indorsement, but both were admitted and read in evidence. Neither was admissible. The fact [245]*245that the poor-house ticket was necessary to plaintiff’s admission did not make it admissible as evidence, nor did the fact that the State required a record to be made of his admission. The fact of his admission to the poor-house as a public charge was irrelevant, and could but prejudice the jury in his favor.

Plaintiff had, before his employment by defendant, been employed by the Acme White Lead & Color Works, in grinding dry color and vermilion, which contained a large percentage of lead, and it was insisted by defendant that plaintiff’s troubles were attributable to lead, rather than arsenical, poisoning. Dr. Erickson was not called, and no reason was given why he was not, except that upon the previous trial he was called by defendant, and it is urged by plaintiff’s counsel that he was presumably hostile. The indorsement purports to be simply information sought to be conveyed by Dr. Erickson to the ■officials at the poor-house. It is urged that this information was usually entered upon the records of the poorhouse, and was admissible as a part of such records. There is no statute requiring the city physician to give such information or providing for its record. If ■entered at all, it was entered upon the official registry, undoubtedly kept of each patient on his admission. The rule is that such registrations are not, in general, evidence of any facts not required to be 'recorded in them, .and which did not occur in the presence of the registering officer. Thus a registry of marriage or of baptism is evidence only of that fact. 1 G-réenl. Ev. § 493. The mention of the child’s age in the register of christenings is not proof of the day of its birth, to support a plea of infancy. Burghart v. Angerstein, 6 Car. & P. 690. Regarding certificates given by persons in official station, the rule is that, if the person was bound to record the fact, the proper evidence is a copy of the record; but as [246]*246to matters which he was not bound to record, his certificate, being extra-official, is merely the statement of a private person. 1 Greenl. Ev. § 498; Oakes v. Hill, 14 Pick. 443.

Plaintiff called as a witness one Dr. Zimmerman, who was the practicing physician in charge of the Wayne county poor-house, who stated that—

“He became acquainted with the plaintiff; that plaintiff's feet were partially paralyzed; that he did not seem to have any use of his feet to any extent; that he was in the hospital about eight months; that he had no other sickness that witness could remember; that he has paid no special attention to the subject of the effect or nature of arsenical or other poisons, but knew that arsenic and what was known as ‘blue vitriol' were deadly poisons; that he thought there was an eruption from external arsenical poisoning, and that partial paralysis, to a greater or less degree, is one of the consequences of arsenical poisoning; that when Eox came he brought with him a statement of his history, and that the paper shown was brought by Eox, and that at the time H. Erickson was. one of the city physicians of the city of Detroit.
“Q. What was your diagnosis ? Have you any recollection now of it at the time you received him?
“A. Partial paralysis.
“Q. Arising from what cause?
“A. I think the cause was based upon that paper.
“Q. What did you arrive at from your inspection of it, and the information that was communicated to you by that there as a part of the history of the case ? From the history of the case, what did you attribute that paralysis to in your diagnosis?
“A. From arsenical poisoning.”
On cross-examination witness testified that “he never had a case of arsenical poisoning except this one; that he deduced his diagnosis of paralysis from plaintiff's appearance, and the cause was from the paper, and that he knew nothing about the case, except a paper that was before him, and is not in evidence.”

Defendant's counsel moved that the testimony of the witness as to the diagnosis be stricken out, but the mo[247]*247tio'n was overruled, and defendant excepted. It does not appear just what this paper contains, except that plaintiff’s counsel in their brief claim it was Dr. Erickson’s certificate. It is clear, then, from the testimony of the witness, that he did not base his diagnosis upon any history of the case, but based his opinion as to the cause of the paralysis upon Dr. Erickson’s conclusions. The court erred in overruling the motion.

Several physicians were called as experts to give their opinions upon hypothetical questions asked as to the cause of plaintiff’s paralysis, and, from an examination of the record, it is clear that the hypothetical questions involved facts and conditions which were not supported by the testimony. In the manufacture of Paris green a quantity of sal-soda is first put into a vat. This is dissolved by steam turned in from the side of the vat, 5 or 6 inches from the bottom. The vat is about 5 feet 6 inches in height, and when the sal-soda is dissolved the* vat is about two-thirds full of sal-soda and water. The^ steam is then turned off, and the powdered arsenic is* shoveled and poured from kegs into the liquid already in the vat. After this is done, the steam is againt turned on from 25 to 40 minutes, during which time-the stirring of the mass is kept up. The quantity off arsenic put into the vat would fill it up from one to two inches. The object of the injection of the steam is to boil the mass. It is clear that in this process the steam was forced, not into or upon a quantity of dry powdered arsenic, but was injected horizontally into a mass composed of sal-soda, water, and arsenic; but the hypothetical question put waB:

Suppose that the man was employed to mix powder, that is, was set to work mixing a powdered stuff with steam blowing on it, until it was reduced to a sort of jelly; that a portion of his duty while it was arriving at [248]

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Bluebook (online)
52 N.W. 623, 92 Mich. 243, 1892 Mich. LEXIS 858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-peninsular-white-lead-color-works-mich-1892.