196 Mass. 302 | Mass. | 1907
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
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. Fill
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
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
The many other exceptions taken by the defendant have not been argued and we treat them as waived.
Exceptions sustained.