Cashin v. New York, New Haven, & Hartford Railroad, 185 Mass. 543

Cashin v. New York, New Haven, & Hartford Railroad

185 Mass. 543 | Mass. | 1904

Hammond, J.

One of the claims made in behalf of the plainTiff was that the accident had caused serious mental injury, resulting among other things in melancholia. As bearing upon his mental condition in that respect, the testimony of the wife that she had heard him say “ if he didn’t have children he would *545commit suicide,” was plainly admissible. It was a verbal act which tended to show the mental condition. Lane v. Moore, 151 Mass. 87. Hayes v. Piíts-Kimball Co. 183 Mass. 262, 263, and cases cited. It is suggested in the defendant’s brief that this was a private statement by a husband to his wife, but no such suggestion was made at the trial and there is nothing in the record to show that the statement was part of a private conversation.

The question put to the witness Barnes so far as it sought to show exclamations of present pain was admissible. After a colloquy between counsel on each side and the judge, in which counsel for the plaintiff expressly disclaimed any purpose except to show expressions or ejaculations of present pain and expressly told the witness that if the plaintiff said “ he was sorry his head did ache, or that he wished he could be back where he was before,” the witness “need not put that in,” the judge said in substance that the witness might answer the question so far as it called for any statement as to a then alleged existing pain and condition. The whole colloquy shows that the question called only for ejaculations of pain, and that the judge admitted it solely for that purpose. The witness, however, with a perversity which it may be argued was not due to ignorance on his part as to the proper scope of the question, — a kind of perversity quite common where a witness whose sympathies are enlisted has something which he is anxious to say, — answered the question in a very objectionable manner, and in direct opposition to the instructions given him by the counsel who called him. That part of the answer which ends with the word “headaches,” when taken in connection with the statement that at the time of the exclamation the plaintiff had his hands upon his head, may be regarded as an exclamation and ejaculation of present pain. And it is none the less so even if it also carries an idea of similar past pain. So far as it was an ejaculation of present pain it was admissible and was therefore rightly admitted, but it was not to be considered as any evidence whatever of similar prior pain. The rest of the answer was inadmissible. Since the question and a part of the answer were admissible, it was the duty of the counsel for the defendant, if he desired to object to any part of the answer as going beyond the proper scope of the *546question, to call the attention of the’ judge to that fact by moving to strike out the part of the answer which was not responsive. Inasmuch as he did not.take that course, the judge and opposing counsel were warranted in assuming that he relied upon his general objection to the question and not upon any specific objection to the answer, and that he regarded the whole answer as responsive and within the proper scope of the question. Under these circumstances, he must stand upon the general objection to the question, and upon that matter the fact that some portion of the answer not responsive to the question was admitted, is not material. It is to be assumed that in the instructions to the jury the proper bearing and scope of the answer was stated to the jury.

In the case of the books which were offered as records of the respective hospitals, it was not contended that as to either institution the records were kept under any requirement of law. They were therefore not public records, and were not admissible, unless supported by the testimony of the one who made them, if that person were still alive and capable of being produced to testify. Kennedy v. Doyle, 10 Allen, 161,165. See also Townsend v. Pepperell, 99 Mass. 40, where the record was admitted evidently upon the doctrine that, it being more than thirty years old, there was no need to show the death of the person who made it. In the present case the judge may well have found upon the evidence as to each' hospital, both that the records were imperfect and that there was no reason to suppose that the writers could not be produced. The records upon such a finding were properly excluded.

Exceptions overruled.