Conklin v. Consolidated Railway Co., 196 Mass. 302

196 Mass. 302 | Mass. | 1907

Sheldon, J.

The, witness Jacobs was allowed against the exception of the defendant to testify that the defendant’s conductor Killoy, while on the defendant’s car, had said in a talk with the witness that he would assault some one on the car before he got through. The plaintiff was not on this car, and the time of the talk is no further fixed than by the witness’s statement that it was a “ comparatively short time ” before the alleged assault on the plaintiff. It was agreed on both sides that there was an encounter between the conductor and the plaintiff; but there was much contradictory evidence as to which of them was the aggressor. The jury were instructed to consider this testimony of Jacobs only upon the question whether the conductor did or did not begin the assault.

The plaintiff’s counsel contend that this evidence was competent on the general doctrine that upon the issue whether a person has done an act, evidence of an intention or design in his mind to do that act is material, and that his contemporaneous acts and declarations tending to show that he has such intention are competent to show this fact. Commonwealth v. Trefethen, 157 Mass. 180. Inness v. Boston, Revere Beach & Lynn Railroad, 168 Mass. 433. Viles v. Waltham, 157 Mass. 542. Commonwealth v. Crowley, 165 Mass. 569. If this action were against the conductor himself, the plaintiff’s contention would be well founded; A defendant’s intention or preparation to commit the particular wrong which it is charged that he afterwards did commit may always be shown in evidence against him. There are many decisions to this effect. Commonwealth v. Williams, 2 Cush. 584; Commonwealth v. Choate, 105 Mass. 451. Commonwealth v. Chase, 147 Mass. 597. Commonwealth v. Quinn, 150 Mass. 401. Commonwealth v. Crowe, 165 Mass. 139. Nor is it necessary that a threat of violence such as was here in question should be directed against the particular person upon whom the wrong was after-wards committed, if there was such a general threat or such an indication of a general malicious intent as could properly be found to have included that person within its scope. Commonwealth v. Snell, 189 Mass. 12. State v. Lapage, 57 N. H. 245. Hopkins v. Commonwealth, 50 Penn. St. 9. State v. Grant, 79 Mo. 113. Dixon v. State, 13 Fla. 636. Shaw v. State, 102 Ga. 660. Burton v. State, 115 Ala. 1. People v. Craig, 111 Cal. 460.

But in our opinion the question of the admissibility of this evidence must be determined upon the principle that the mere declaration of a servant or agent, not within the scope of his employment or authority, is admissible against his employer or principal only when it constitutes a part of the res gestee, when it either accompanies an act which is itself competent and material to be proved and which it tends to qualify, characterize or explain, or when it is itself a part of the transaction under investigation. It js conceded that this is the general doctrine both of our own decisions and of those of other jurisdictions. Lund v. Tyngsborough, 9 Cush. 36. Nutting v. Page, 4 Gray, 581, 584. Brookfield v. Warren, 128 Mass. 287. Morrison v. Lawrence, 186 Mass. 456, 458. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637. Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 99. Patterson v. Wabash, St. Louis & Pacific Railway, 54 Mich. 91. Chicago & Northwestern Railway v. Fillmore, 57 Ill. 265. Marion v. Chicago, Rock Island & Pacific Railway, 64 Iowa, 568. Forsee v. Alabama Great Southern Railroad, 63 Miss. 66. Alabama Great Southern Railroad v. Frazier, 93 Ala. 45. Alabama Great Southern Railroad v. Hawk, 72 Ala. 112. We perceive no logical difference in the application of this principle between declarations made before and those made after the event in question. Mobile & Montgomery Railroad v. Ashcraft, 48 Ala. 15. San Antonio & Aransas Pass Railway v. Robinson, 73 Texas, 277. Louisville & Nashville Railroad v. Stewart, 56 Fed. Rep. 808. And the very argument made here, that such declarations, even though not in themselves binding upon the master, are yet competent to show the state of mind or the intention of the servant who made them, has been held to be unavailing. Newsom v. Georgia Railroad, 66 Ga. 57. International & Great Northern Railroad v. Telegraph & Telephone Co. 69 Texas, 277. It is no more competent for a mere servant to make evidence against his employer by an antecedent statement or manifestation of his feelings than by any other admission which he may be willing to make.

We need not consider whether this evidence would have been admissible if the declaration had been made while the plaintiff was on the car and with direct reference to him. Under the circumstances before us, the question presented is almost exactly the converse of that which was considered in Bonino v. Caledonio, 144 Mass. 299, 402, and must be governed by the reasoning of that case. We are unable to avoid the conclusion that this evidence ought not to have been admitted; and it undoubtedly must have been prejudicial to the defendant.

The exception to the admission of Dr. Russell’s testimony cannot be sustained. It was competent to prove the professional standing and reputation of the plaintiff and the nature and extent of his practice before and after the injury, upon the question of damages. Wheeler v. Hanson, 161 Mass. 370. Rooney v. New York, New Haven, & Hartford Railroad, 173 Mass. 222. Harmon v. Old Colony Railroad, 168 Mass. 377. George v. Haverhill, 110 Mass. 506. And the judge properly might find that the. witness had sufficient acquaintance with the plaintiff’s practice to answer the questions put to him. Pierce v. Boston, 164 Mass. 92. Amory v. Melrose, 162 Mass. 556. Prendible v. Connecticut River Manuf. Co. 160 Mass. 131. Lawrence v. Boston, 119 Mass. 126. Lawton v. Chase, 108 Mass. 238. Moulton v. McOwen, 103 Mass. 587. The witness’s knowledge was greater than that of the witnesses whose testimony was excluded in Nelson v. Boston & Maine Railroad, 155 Mass. 356. If specific objection had been taken to the witness’s answers, a more difficult question might have been presented; but this is not shown to have been the case. Putnam v. Harris, 193 Mass. 58, 62, 63. Nor does it appear whether any or what additional testimony was offered upon the subject. We cannot say that there was error in this ruling. Lund v. Tyngsborough, 9 Cush. 36. Commonwealth v. Sturtivant, 117 Mass. 122. Stone v. Commonwealth, 181 Mass. 438.

There was no error, in refusing the defendant’s sixth request for rulings. The jury had a right to find that the prosecution was instituted by its conductor and its servant, Judge, maliciously and without probable cause, and that they acted within the scope of their authority from "the defendant in what they did. Krulevitz v. Eastern Railroad, 140 Mass. 573, 575. They also might find on the evidence of Cook that before trial the prosecution was made known to Punderford, a manager or superintendent of the defendant, and was ratified by him. The evidence of such a ratification by assenting to the prosecution and intimating a readiness on his part either to settle it or allow it to go on, was stronger than that which was held to be sufficient in White v. Apsley Rubber Co. 194 Mass. 97.

The defendant’s ninth request undoubtedly contains a correct statement of the law as to the count for malicious prosecution, although plainly it could not have been given in full, for the defendant of course would have been liable on the first count although the plaintiff was the aggressor and made an unjustifiable assault on the motorman or conductor, if the defendant’s servants then used excessive force upon him. Brown v. Gordon, 1 Gray, 182. Coleman v. New York & New Haven Railroad, 106 Mass. 160. Collins v. Wise, 190 Mass. 206. But the plaintiff contends that, so far as it applied to the count for malicious prosecution, this instruction was given in substance. As, however, there must be a new trial on account of the admission of the testimony of Jacobs, and as the question is hardly likely to arise again in exactly the same way, it is unnecessary -to consider this exception further.

The many other exceptions taken by the defendant have not been argued and we treat them as waived.

Exceptions sustained.