Page:Harvard Law Review Volume 9.djvu/250

22 2 HARVARD LAW r.EVIEW. Communications are variously protected by statutes in the different States; but in any case, the courts are not disposed to protect communications unsuited to aid the physician in treating the patient. In the case of Cooley v. /c./z, 85 Mich. 47, a phy- sician was allowed to testify that the plaintiff, on employing him, told him that she should need him as a witness. In N. Y., too, where the tendency of the courts has been to construe the privilege broadly as covering all communications to physicians made in the course of professional treatment, the case of Hoyt v. Hoyt, iiz N. Y. 493, 515, per Gray, J., points towards the more general doctrine. In that case, the testator's opinion of plaintiff's sanity communicated to his attending physician, was admitted in evidence. Evidence — Physician's Testimony. — A physician who had treated the defendant, testified that the defendant told him that a piece of a nail had come out of his knee. No question of privilege of communications to a physician was involved. Held, that the evidence was hearsay and inadmissible. B. &= A. R.Co. v. O'Reilly, 15 Sup. Ct. Rep. 830. The decision is undoubtedly correct ; but the case is to be sharply distinguished from those cases in which it is sought to introduce a patient's statements to his physician, not as .evidence of the facts stated, but as evidence of the grounds on which the physician bases his opinion of the patient's condition. There is authority for admitting such statements for the latter purpose. Barber- v. Merriafn, 1 1 Allen, 322. £viDENCE — Presumption of Fault. — Hfld, that where one vessel is clearly shown guilty of a fault adequate to account for a collision, there is a presumption raised that the other vessel is free from contributing fault until rebutted by clear proof to the contrary. The Oregon, 15 Sup. Ct. Rep. 804. The presumption laid down here is not new ; it is stated in substantially the same way in i Parsons on Shipping and Admiralty, 529, in 5 How. 441, 465, and in Olcott Adm. 132, 138. The striking feature about the presumption — one not expressly noticed in the earlier cases — is the amount of evidence necessary to overcome it. It is not enough for the vessel whose fault is sufficient to account for the collision "to raise a doubt with regard to the management of the other vessel . . . and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor." The City of A^e^v York, 147 U. S. 72, 85. The weight of the presumption entitles it to rank with the familiar presumptions of innocence and legitimacy. Evidence — Shop-books — Original Entries. — Where a shop-keeper enters sales of goods on loose slips of paper, which items are transferred in the evening to a ledger, if these items consist merely of a general charge of merchandise and the amount for which it sold, held, such a ledger is inadmissible as a book of original entries. Way et al. v. Cross et ol , 63 N. W. Rep. 691 ( Iowa). The Court appears to lay down a narrower rule than is held in many jurisdictions. It would not generally be held fatal to the admission of a shop-book that the entries did not specify the kind of goods purchased. A shop-book has been held admissible in Massachusetts, although the item for which it was put in contained neither measure, weight, nor quantity. Pra!t v. White, 132 Mass. 477. Books which contain nothing more than marks or figures have been held admissible if other evidence is forthcoming which can explain these and show their connection with the main transaction. Miller v. Shay, 145 Mass. 162. The fact that the book offered in evidence is kept in ledger form, and that the entries have been posted each evening from memoranda made elsewhere during the day, has been also held not to bar its admissibility. Faxon v. Hollis, 13 Mass. 42. Interstate Commerce — State Control. — Where a carrier has received exces- sive rates for carriage of goods from one State to another under a contract made before the enactment of the Interstate Commerce Law, held, that he cannot be com- pelled to refund the excess over a reasonable charge. Cation v. C, A I. ^ P. K, Co., 'c>:>i N. W. Rep. 589 (Iowa). See Notes. Persons — Divorce — Cruelty. — Petition by the husband for divorce, on the ground of extreme cruelty, the wife having repeatedly accused him both in public and private of having committed sodomy. Held, that to constitute legal cruelty there must be a reasonable apprehension of danger, present or proximate, to life, limb, or health (Rigby, L. J., dissenting). Russell v. Russell, The Times Law Rep.-579. ( Court of Appeal). The above doctrine of legal cruelty was approved in Evans v. Evans, i Hag. Con. 38 ( 1790), and has been closely followed ever since by the English Courts, the Courts having " always been jealous of the inconvenience of departing from it. " Justice