On Application for Rehearing
HARWOOD, Justice.In brief in support of the application for rehearing counsel for appellant argues strenuously that we erred in our judgment of affirmance of the judgment in that prop*35er recognition was not given to the doctrine of those cases which hold that if a disease from which an insured is suffering causes the accident which in turn produces injuries and death, then death results directly or indirectly from the disease which caused the accident.
In support of this proposition counsel cites the following cases: Knowlton v. John Hancock Mut. Life Ins. Co., 146 Me. 220, 79 A.2d 581; Halligan v. Underwriters at Lloyd’s London, 102 Ga.App. 905, 118 S.E.2d 107; Locker v. Equitable Life Assurance Society of United States, Sup., 136 N.Y.S.2d 652 (New York); Sullivan v. Metropolitan Life Ins. Co., 96 Mont. 254, 29 P.2d 1046; Lederer v. Metropolitan Life Ins. Co., 135 Pa.Super. 61, 4 A.2d 608; Mutual Life Ins. Co. of New York v. Hassing, 10 Cir., 134 F.2d 714; Russell v. Glens Falls Indemnity Co. of Glens Falls, N.Y., 134 Neb. 631, 279 N.W. 287; Goodes v. Order of etc., Travelers, 174 Mo.App. 330, 156 S.W. 995; Independent Life and Accident Ins. Co. v. Causby, 94 Ga.App. 305, 94 S.E.2d 388. These cases are supportive of the proposition urged by counsel.
However, we are here considering the judgment entered by the trial court sitting without the intervention of a jury. True, the evidence submitted was largely by deposition, and exhibits, in the form of hospital records introduced through the medium of these depositions, and therefore the finding of the court is not due to be accorded the presumption given the findings of a trier of fact based on evidence ore tenus.
Evidence introduced by the plaintiff tended to show that Mr. Reid, the deceased, always shaved standing up in the tub and that during such procedure it was necessary that he hold the ileostomy bag with one hand. The plaintiff’s evidence further tended to show that the tub was slippery. Mr. Reid’s son testified that he had slipped in the same tub several times.
In considering the propriety of the conclusions of the lower court, sitting without a jury and therefore in the capacity of a trier of fact, we review the tendencies of the evidence most favorable to the plaintiff, and must allow such reasonable inferences as a jury would have been free to draw. Under the plaintiff’s evidence we think it permissible for the court to have reasonably inferred that Mr. Reid slipped in the tub while shaving. On the other hand, there was received in evidence a great mass of hospital reports from the Ochsner Clinic in New Orleans. As before stated these hospital and medical records were introduced through the depositions of several doctors at the hospital and at the time of the taking of the depositions it was agreed “that neither side raises the question of the authenticity of the records * * No objections to any portions of these hospital records were raised at the trial below.
In the “nursing notes” which constitute a part of the hospital records that came into evidence as above stated appears the following which was made immediately upon Mr. Reid’s admission to the hospital:
“States he blacked out in shower and turned off cold water, left hot water on.”
In the reports of Dr. Moore appears the following:
“On February 24, 1960, the patient was admitted to Ochsner Foundation Hospital. It was stated that while the patient was taking a shower he fainted. When he fell he turned the cold water off and consequently was severely burned. The patient was cyanotic and looked terminal. The pulse rate was 24.”
Statements of similar import appear in the reports of Dr. Meyer and Dr. Carrera, Dr. Webster, and Dr. Brumfield.
During the cross examination of Dr. Ochsner at the time his deposition was taken he was asked if he had not testified at a previous trial in Andalusia that “A Stokes-Adams Syncope while bathing and accidentally turning on the hot water actually is what caused Mr. Reid to be burned.” Dr. Ochsner answered that if the transcript so *36showed he presumed he did, but that such an answer was purely presumptive and “We knew he fell. Whether he slipped or had had a Stokes-Adams Syncope, I do not know. I do not think anybody can tell us.”
As before stated, the hospital records were admitted by agreement that there would be no question raised as to the authenticity of the records.
In Alabama, hospital records are admissible under the provisions of Section 415, Title 7, Code of Alabama 1940, relating to the admission into evidence of business records made in the regular course of business. This section provides further “All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility.”
In other states where, as in Alabama, hospital records are admitted under a business records statute, the courts have uniformly held that the admissibility of hospital records should be limited to entries recording the details of the diagnosis, and the medical and surgical treatment of the patient, and that data pertaining to the cause of the injury, unless essential to a diagnosis, should be excluded.
It is the view of the cases that since statements in hospital records pertaining to the manner of the injury are hearsay, and have no reference to the diagnosis or treatment of the patient, they should not be considered as records pertaining to the business of the hospital, -unless pathologically germane to a diagnosis and treatment of the patient.
Clearly the hospital records are hearsay and inadmissible, unless under the provisions of Section 415, supra.
The history given by the patient upon admission as to the cause of his injury cannot be considered admissible as part of the res gestae, since such statements are made subsequent to the event. Nor are such statements admissible per se as an admission against interest in that the party to whom they were made is not present. In other words, the proper predicate is generally absent for the introduction of such statements as admissions against interest.
An excellent annotation entitled “Admissibility of Hospital Records relating to cause or circumstances of accident or incident in which patient sustains injury,” commenting on innumerable cases to the effect as above set out, may be found in 44 A.L.R.. 2d at page 553, and we will not burden this opinion with the citations of these authorities.
It is true that where the evidence before the court is not ore tenus, but as in this case by way of depositions, no presumptions arise in favor of the court’s conclusions on such evidence if contradictory evidence is also present.
The present evidence as to the aspect of the history contained in the hospital reports was before the court by virtue of the agreement of counsel that xro objection would be raised as to the authenticity of the hospital reports axid because no objectioxis were imposed to the historical statements in the court below. Had objections been interposed to such historical portions, that is, as to how the injuries occurred, such objections would have had to be sustained.
Under the procedure followed, the court had no opportimity to rule upon the admission of such evidence, which was inadmissible, though relevant. The question arises therefore as to what weight the lower court should have accorded this evidence in its determination of the issues.
This being a suit at law, the rules developed in equity cases pursuant to the provisions of Sec. 372(1), Tit. 7, Code of Alabama 1940, to the effect that in the absence of objections the court could consider only such evidence as is relevant, material, competent, and legal, do not apply.
Nevertheless, in International Agricultural Corporation v. Southern Ry. Co., 188 Ala. 354, 66 So. 14, a suit at law, this court *37said, in reference to the question as to whether the terms of a bill of lading had been altered by a subsequent agreement:
“There was an attempt on the part of the plaintiff to show that the defendant did consent, but there was an utter failure so to do. There was offered no competent evidence to show that the defendant did so consent; most of that offered the court expressly ruled out as incompetent; and, as the facts were found by the court and not by a jury, we must presume that the court considered only the competent evidence. And especially is this so when, as here, the finding is in accord with what it should have been if illegal evidence was not considered.”
In Nash v. Nash, 38 Ala.App. 682, 94 So.2d 217, the Court of Appeals stated:
“When a cause is tried before a court without a jury, the court is presumed to eliminate all improper evidence when it makes its judgment upon the entire evidence. Especially is this so when the finding is in accord with what it should have been if improper evidence was not considered.”
The above statement we believe sound if it be amended to the extent that if the improper evidence be admitted over objection, then it must be presumed that such improper evidence was considered.
But where, as here, the court had no opportunity to rule on the questioned evidence, must it nevertheless accord to evidence, inadmissible if objected to, full weight merely because the evidence is in a mass of documentary evidence injected into evidence by means of an agreement not to object to the authenticity of the documentary evidence offered.
Conceding that the inadmissible evidence was before the court under the above circumstances, it is to be noted as to documentary evidence admissible under Sec. 415, supra, lack of personal knowledge of the entrant or maker may be shown to affect its weight. It is clear from the record that the makers of the entries pertaining to the circumstances surrounding Mr. Reid’s fall in the shower were not present at the time. Their statements are hearsay, and no part of the diagnosis and treatment of Mr. Reid. While these entries tend to establish appellant’s contention that Mr. Reid’s fall was due to the heart disease with which he was afflicted, the tendency of appellee’s evidence was to create an inference that his fall resulted from the slippery nature of the tub. We are unwilling to say that the conclusions reached by the trial court were palpably erroneous.
Opinion extended; application overruled.
LIVINGSTON, C. J, and SIMPSON and MERRILL, JJ., concur.