*1 Mosley. Company Dec. Insurance of the case. Statement a his de- in the same State necessary with party, citizenship fendant did not defeat the jurisdiction.
Judgment aeeirmed. Company Mosley. Insurance J., himself, party made, a The declarations of to whomsoever are competent evidence, strictly expressions, when confined such and ex- complaints, present malady, as furnish evidence existing pain clamations of or condition, ills, pains, his from symptoms, arising whether sickness, an injury by or from accident or If to a violence. made attendant, medical of if weight are more than made to another person. by is a declaration made person, contemporaneously So deceased or so, nearly main by with a event it is consequence alleged whose that he died, as of Though to the cause that event. the declarations generally event, must be contemporaneous yet connecting with the where there are circumstances, they may, afterwards, even when made time form some gestae. of res the whole bodily gestee fact is the fact of principal injury, res are the "Where injured of cause made party statements almost contempo- raneously injury, the occurrence of and those relating consequences while the latter subsisted and were in progress.
Appeal Circuit from the Court for tbe Northern District this:,. the case Illinois, being Travellers’ Insurance The insured Company Chicago $5000, of one the life Mosley favor of wife. . “ Within after sufficient 3ays, that the ninety proof assured at time within twelve after months the date of this policy have sustained caused personal shall accident injury, by any this meaning the conditions policy within hereunto an- shall nexed, injuries and such occasion death within three months thereof.” the happening from other contained among provisos this policy one: That no claim shall be made always, under Provided this assured, said respect any injury, unless
policy some be outward and caused'by means, shall visible same can satisfactory and this in- company furnished, proof
Statement the ease. anee sur shall not extend to caused from any injury arising natural disease.” died within the
Mosley term for which his life was having *2 his who he insured, wife, that had died from alleged personal caused accident, demanded injury, the of the com- $5000 declined to pany, She pay. thereupon brought on The declaration assumpsit that on policy. alleged, the 21st of the said 1866, July, fell Mosley “accidentally down a of stairs and was pair and severely injured thereby, he, that within three months after the of the said happening accident, wit, &c., died from the effects of said acci- dental fall, and that the death was occasioned the said and and accident, that the defendant injury had sufficient said of accident and death proof befoi'e com- ninety days mencement of this suit.” of On issue plea general and a trial before a the main in was the jury, point question cause of the of death Mr. Mosley; plaintiff contending that it was of fall that he met inwith consequence going into his back on the between the 18th and yard 19th night of 1866, defendant, and that was not. July, in
It that Mr. his usual Mosley-was health until appeared that and bed; that he Mrs. had that Mosley night; gone stair’s; 12 and between 1 o’clock he and got up went down he and came to his wife up complained son and having fall; and that had were described symptoms himby time; that he continued ill at until Monday, 22d, when he died. There was medical and testimony, other, and of his mental condition from the time of the given bodily death; accident time of his there alleged up also medical of his condition after testimony death, given aiid'of an examination of the cranium and brain, and externally insisted that the evidence internally. she plaintiff in- troduced tended to show that Mr. died Mosley consequence the fall before referred to, and the defendant insisted that the evidence introduced tended to show company death was not caused fall, but was by any consequence (congestion brain,) disease, Dec. ease.
Statement own on behalf, that Wednesday Mrs. testified her Mosley had her husband 1866, she and gone the 18th July, night, he and went and one o’clock up to bed. twelve got Between back; out she didn’t for the down stairs purpose going he he came back said he was When know how long gone. himself; killed and almost had down the he fallen back'stairs and his head in down he hit hurt the back of falling had noticed that voice which led out back. She the stairs his once. she matter at He into the trembled, inquired vomited; faint he of his head, complained appeared almost as as he she room; threw soon into up got got and he laid down on sofa. He had but up, nothing vest; she didn’t more pataloons sleep any night, and was with him all He up night. complained ap- him to be in asked if should send She peared great pain. no; he for Dr. lived said Webster, near, who thought *3 he not then the should be and did call Doctor. better, there bad, On he said he felt was a Thursday morning recurrence of fainting.
To the of Mrs. all that Mosley which portion testimony set of her husband his forth the declarations about falling down the back stairs and almost himself killing hurting the head, the defendant’s counsel back his part objected, overruled, and their the defendant objection being excepted. A assured, son of the testified behalf of the plaintiff, “ in the lower that he slept occupied building by that before father; his about o’clock of men- night he his tioned saw father with his head on the counter, lying matter; and asked him what he he was that had replied fallen down the back stairs and hurt himself very badly.” The defendants to both the and answer. question objected An to their admission followed. exception The further, same witness testified on the after day father felt and that if he fall, said he at- badly, very (cid:127) became, to walk his head across room tempted dizzy; on the a little if worse, he said he was following any- day excepted The admission of this also was thing.” testimony the defendants. by Qt. Argument for company. the insurance There was no witness who he testified' that saw de- stairs; ceased fall down several did, there though such back stairs as it was testified spoke falling down.
Verdict and been for the judgment having given plaintiff, and the case here, the questions presented being bill of were : exceptions
1. Whether the court erred in the declarations admitting assured as to his ? bodily injuries pains (cid:127) 2; Whether it erred such' declarations to admitting that he had fallen' down stairs ? Sansum, Mr. error: plaintiff time Without first questions spending pre- sented a technical division of the bill of exceptions—and law, decision on adverse to our does‘ which, .view our main that the widow affect contend must objections—we show—
1st. That her caused ac- husband died from injuries cident, and,
2d. That the thereof insurance proof satisfactory company. insurance is not death but against against generally, from
death accidental injuries. isIt1. to the com- expressly provided proof satisfactory It shall be is the made. as to what shall pany proof judge This abe hard but it is satisfactory. agreement, the contract between court will parties, enforce have contract that the made. The parties company, by *4 that' refusing to.pay, demand, by contesting says, are and accident not proof injuries satisfactory. is no There in the declaration that allegation proof and accident has been to it. injuries satisfactory As it is of the case, no witness was called to .that that the deceased fell down the it cannot be stairs, prove pre-i sumed evidence was an And accident. given that the court shall so far as to hold that the supposing go of the deceased are declarations admissible to establish the Dee. 401 company. for the insurance
Argument he did still there them to fall, fact that show nothing accidentalfall. it was an declarations of the deceased made to his wife The and son not to have been died, admitted days ought before four fact that deceased did fall to establish the down the stairs in are come because they question, clearly hearsay, they within rule that not exceptions any general derivative or secondhand statements are receivable as évidence in causa* The reasons them against admitting are whom the is offered has evidence party against source; had to cross-examine the no opportunity original and, statement to be assuming original correctly was not made under sanction of originally reported, it were made an oath; and, an under the sanction of though it is not oath in admissible unless the judicio, party against had whom it offered cross- right opportunity it. examine, neglected fact which defendant in error seeks to establish by is not one declarations,
mere nor of reputation, pedigree, None these or established boundary. exceptions apply. declarations were Nor admissible. This is dying they plain. are res lies are
Nor gestee. gestee surrounding transaction, bé facts of submitted to a jury pro- vided can established sanc- .by competent means, and afford law, tioned fair or infer- presumption ence as to the question dispute. And declarations again, act, an of that act, res accompanying explanatory gestee. are the facts, of an They surrounding act, or explanatory a motive for But the fact must showing acting. principal established, until be first it is established, surrounding and, facts are not surround- certainly, exhibiting admissible— facts is not fact. For establishing principal example: ing leaves his merchant of residence place A or denies himself That he his creditors. left his residence,, place his creditors, an himself issue of denied bankruptcy, Cranch, 290; Hepburn, King 7 Eriswell, Mima Inhabitants Pearl, Term, 707; Peters, Ellicots v. yol. Yin *5 Company Mosley. Insurance
Reply. facts; are material and one of his decía these proven, being left it, rations made to others he or denied why explaining are admissible res but it would com- himself, not be gesté; show he unless were first said, what petent has left his of residence. denied, place appear Peck, Mr. relied on Aveson Kinnaird* contra, as decisive of the case. counsel the.widow
Reply. cite Avesonv. Kinnaird,† The and it is relied But that case makes upon. plain against The issue there whether the was, (cid:127)tiff. insured was in good at health then was effected policy in.question time her life her husband. A few after days physician her, examined and made of her about her health. inquiries forenoon; seen in She was bed at o’clock in II was witness called to she saw the fact that testify deceased in bed the time mentioned, at and that the de ceased then said she was not in she health, good she was afraid would die before could be delivered. policy The fact that deceased was in bed established was witness. This was a material fact to be established upon the issue made in case, viz., whether the deceased was time; health at the and doubtless the good declarations deceased were admissible, inwas why explaining an bed. issue as to whether the deceased was-well or Upon time admissible; ill at the her question, declarations for one’s while from are the feelings suffering malady indicators of that how deceased in true malady, be ascertained cited’felt could what she case only said. as well case one of as res The The necessity gestee. very of that case made it to show nature what the de necessary felt; said as to how she found sick in bed, ceased being declarations she was there is a fact, her why surrounding of the material found in bed. explanatoi’y being fact— declai’ationsof the in the case at deceased, bar, he felt in show how res witnesses, ai’e presence * East, Ib. Dec. in the
Recapitulation opinion. case far as other facts that so explanatory gestee But as evidence of his fall down the then. were occurring *6 are not stairs, competent. deceased declaredto his wife that he had fallen fact that
The hit his the back stairs and not the here head, down point in The did the deceased is, controversy in controversy. point in and was the fall the stairs accidental? fall down question, wife, the his deceased, declaration of The before he is all that we have died, several days upon says, in If not the fall, the facts competent prove question. the accidental of it ? is it character how enough of the opinion the court. SWAYNE Mr. Justice delivered n the Court of the a writ of error to Circuit United This action District of Illinois. The was for the Northern States Arthur H. of insurance. It insured a Mosley policy upon accident within life, loss of personal injury by against and was issued to instrument, of the the Mrs. meaning for her assured, the wife of the benefit. H. Arthur Mosley, The defendant was in declaration assumpsit. pleaded, The and the cause was tried The issue, by jury. the general bill the trial, recovered. was exceptions During plaintiff in which that error, the the appears taken by plaintiff between quéstion fact, contest parties died assured, Arthur H. from the effects whether Mosley, in fall stairs or from accidental down natural of an night, causes. in was called as witness in her own defendant error The “ the assured left his Wednes- testified, that bed
behalf, o’clock; 12 and 1866, the 18th of between July, day night, he said he had fallen down the when he came back, himself; that he had hit the and almost killed stairs, back stairs; . she noticed his head down . . falling back part trembled; head, he of his voice complained ap- his faint'and to be pain.” great peared of all that of the'testimony admission part the. To his declarations of the about assured, falling relates’to fall, and the he received stairs, injuries down ' Opinion of the court. counsel defendants The court objected. overruled and the defendants objection, excepted.
William H. son of the in behalf assured, testified, Mosley, “that he lower plaintiff, build- slept father; his ing, about 12 o’clock of occupied by he his before-mentioned, saw his father night lying matter; head on the and asked him counter, what was the he that he had fallen replied, down the back stairs and hurt himself defendants badly.” to both very objected An and answer. question to their admission fol- exception lowed. The same witness further, testified on after day fall,.his father said felt and that if he at- very badly, walk across the room, head became tempted dizzy; he said he was a little worse, if following day, anything.” *7 The admission .ofthis also was to the testimony excepted defendants.
This statement which we are called questions presents whether consider. the court are, to erred in upon' They the declarations of the as to his assured, admitting bodily it and whether was and error to injuries admit pains, such to had fallen declarations, down the prove stairs. It remarked, be that the to declarations of the former facts class all at the time related to present existing made. were made
Those of the class latter immediately,,or very soon declarations to his fall; son, after before he-re- his bed-room; his those to his' wife, turned to upon reaching there. or mental an
Wherever individual bodily feelings usual material to of such are be feel- expressions proved, evidence. Those are arid original competent expressions ings what natural reflexes of be to are the might impossible’ be If there such other show other testimony. testimony, facts thus to set the in their developed this may necessary and them their As inde- effect.. proper true light, give or corroborative it is evidence, often explanatory pendent Dec. the court. to the due administration Such
indispensable justice. are as and are acts, declarations verbal regarded competent when to the other relevant issue. Their testimony, is an for truth or falsity inquiry jury.
In actions the breach of evi such promise marry, dence is received to show the affection of the always plain tiff for the and subsisted, defendant while the engagement her off; the state of after in it was broken feelings actions for criminal conversation, show the terms upon which and his wife plaintiff lived before together cause of action the same arose. the declara Upon ground, himself are tions received to party condition, ills, sickness,’or whether from pains, symptoms, arising or an accident If a medical violence. made to injury by attendant, are of more if than made to another weight But to whomsoever are evi made, they person. competent these writers law dence. Upon points, upon leading both in acc evidence, this country England, ord.* this a limitation of doctrine that
There must be carefully in its application. observed evidence must not be extended
Such beyond necessity the rule is founded. It must relate present, the nature past. of narration Anything must be excluded. It confined to such com-' must be strictly exclamations, as furnish evidence expressions, plaints, Examined present pain malady.”† existing rules, of these to which standard this testimony excep admitted. relates properly tion *8 a fuller examination. exception requires other The to the fall the competent by Was declarations n made under circumstances disclosed in the the assured ? exceptions bill of the action was for Thompson Trevanion,‡
In Wife 102; Evidence, 183; 1 p. on on Phillips Evidence (last ed.) 1 Greenleaf § Evidence, 478, 518. on Taylor 1 § Inhabitants, &c., Cushing, v. The 7 586. Bacon † Skinner, 402. ‡
406 [Sup.
Opinion of the court. Lord battery wife. Chief Holt Justice wounding “ allowed, what the wife said the hurt re immediately upon ceived, and before that she had time to contrive or devise for her own to be in evidence.” anything advantage, given The This nota. was at reporter Quod prius, adds: nisi Middlesex, for wrife This wounding plaintiff.” case was referred Lord with by Ellenborough approbation case before him of Aveson case, v. Kinnaird.* In that Lawrence, such evi Justice, objection, answer'to was dence said: “It inis iri hearsay, every day’s experience actions that what a has said his assault, himself, man what, he evidence show has suffered surgeon, assault.”† was an indictment for King manslaughter, Foster‡
for the deceased a him. A cab over killing by driving was He called for the witness wagoner prosecution. rate, stated that he saw cab drive at rapid very hear did not see the accident, after, that immediately the deceased and asked him what went to him ing groan, was matter. The counsel for prisoner objected, what was said in the deceased, absence prisoner, could be received in evidence. that what deceased at the Baron, said, said-
Gurney, .the instant, to the cause of the admis- was accident, clearly sible.
Park, said, it was the best Justice, possible testimony under that, circumstances, could be adduced show what knocked the deceased down. Mr. Justice Patterson concurred. The was convicted. prisoner
In Pike,§ Commonwealthv. as in the indictment, case, was for The defendant was preceding manslaughter. Jt charged wife. that the deceased killing appeared stairs ran from her in the up room, mur own night, crying Another der, woman, into whose room bleeding. admitted, at her went, A request, third physician. * East, 197. Ib. 191. Carrington Payne, Cushing, & § ‡ *9 Company Mosley. Dec. Insurance Opinion court. of heard her for a cries, watchman, and, who went person, his He return, the room where was. found proceeded floor, her on the She said the defendant bleeding profusely. had stabbed her. The defendant’s counsel objected admission this declaration in The was of evidence. objection Court of Massachusetts held, overruled. Supreme the evidence was was said that the admitted. It properly “of nature and that the declaration was of res gestee,” time when it was made recent, was so was after injury as to it inflicted, justify receiving ground. and that
It this ease easy distinguish The-King from the case before Foster, us, principle, regards under consideration. the point Avesonv. was said Lord
In Kinnaird, Ellenborough, that the declarations were in the admitted case Skinner, were a of the res because part they gestee. such declarations within this
To principle, bring generally, must be the main fact to which contemporaneous rule is, But this no of universal- means, relate. ap a In debtor had left v. Haigh,* England Rawson plication. where remained. The Paris, question gone was* from was an his act of bank departure England whether the intent which he depended upon was ruptcy, a letter To show this written in intent, a Prance, actuated. was received in after evidence. departure, month Upon held it was that it was received. full properly argument, It to tie down said: to time impossible Park Baron We from all the to the declarations. must cir judge rule We need not case. go length cumstances shy declaration, a month after fact, would, ing, admissible; if, case, as in the there present itself, even circumstances, it at that form time, may, are connecting res gestee.” the whole and the struck in- peddler wagon peddler’s Where Court locomotive, Supreme Pennsylvania aby jured that the declaration of the cannot say engineer said :We
* Bingham, Ct/ the court. *10 no was of the time—in the res It was made at gestee. view of the strewn the road up by breaking goods along of boxes—and seems to have out of directly grown immediately The declaration happening after fact.” of “ held to be the transaction part of itself.”* In the affairs, of human what is done and what complexity said often so related that neither can is be detached the residue without and distorted. leaving fragmentary There be fraud and falsehood as both; to may but there is no of to one that does exist as objection not ground equally other. To to the verbal would reject not uufre fact have the same effect as to strike out the quently controlling from a member sentence, or sentence from its controlling The context. doctrine of was considered, res this gestae court, in Beaverv. What was said in Taylor.† that case need not be Here the repeated. fact is the in- principal bodily n The res are the statements of the cause made jury. gestae assured almost with its contemporaneously occurrence, and those to the made while the latter relating consequences subsisted were in Where sickness or affec progress. tion the sickness subject or affection inquiry, is the fact. The res are the declarations principal gestae to tending show existence, its and its extent and reality character. The tendency of recent to extend rather adjudications than narrow, the of the doctrine. scope Nightly guarded in its practical there is no application, in the law principle more safe in its results. There is evidence none which on a (cid:127)rests more solid basis of reason and We authority. it was think in the court applied below. properly In the concerns no life, one would ordinary doubt the truth these declarations, hesitate them, un- regard contradicted, as conclusive. Their probative force would not be Unlike much questioned. other evidence, equally for all of moral purposes conviction, cogent have the sanction of-law as well as of reason. The want of this
* Hanover Railroad v. Coyle, Pennsylvania State, Co. Wallace, Dec. Clifford, J., dissenting. law is often
concurrence in the deeply regretted.* to the case under con reference reflection, of this weight that what was said fact, is increased sideration, could “ as declarations,” although person be received dying not be called dead, who made them was could as hence, a witness. AEEIRMED.
JUDGMENT CLIFFORD, Mr. Justice dissenting. Questions evidence to the rules of are of vast as import ” of men interested therein, and conditions
ance all orders law suits, life, liberty, property parties common observance, their strict proper very depend largely issue, excluded, not be pertinent testimony, *11 be and not rec testimony that incompetent improper eived. † “ “ rules,” Marshall, these Chief Justice is that One of says its is, evidence in own inadmissible. nature, Not hearsay because it that better be ad- supposes testimony only might the account of its duced to intrinsic fact, alleged its the mind of the ex- weakness, incompetency satisfy .to of the and the frauds which be fact, istence practised might that verdicts under its color.” shows are Experience wrong in of usual result tes- the wrong admitting improper rulings in that which was and.mate- or competent rejecting timony, (cid:127) the matter iii that courts, rial. viewing light, Appellate errors and correct such to reverse therefore prompt judg- on verdicts or influenced founded such produced ments by erroneous rulings.
All courts the introduction of evidence that agree, certain fixed of and law, governed the jury principles writers treat the under four subject text usually general 1. That the evidence must : with correspond heads the.alle- and be confined to the 2. That the substance issue. gations the declaration must to warrant a in of verdict proved Evidence, 11, ch. Appleton on Cranch, Eriswell, 295; Term, Rex Hepburn, Child J., of Clifford, dissenting.
favor of the the 3. That burden of plaintiff. proving the issue lies on the affirmative. proposition party holding 4. That the best of the case in its evidence, which mature bo must susceptible, always produced.* Founded, insurance, as the is, action policy bear, becomes in order to the understand precise necessary, of the embraced in the to examine ing rulipgs exceptions., the terms and to refer exact issue contract, tendered declaration. terms policy, By for the insurance, in the five one siim of period year, thousand dollars, was to the late granted by defendants husband of plaintiff, caused agaiust “personal injury accidents within the of this . and . . policy,” meaning such as shall occasion-death within injuries three mouths from and thereof, also in- such happening personal against any fatal, if the assured was jury, though thereby absolutely disabled from usual prosecution of his totally employ- out the ment. After in full, the declaration policy setting ón assured, 1st same alleges July year, fell down stairs pair in the “accidentally city Chicago, in said and was county, severely'injured thereby,” assured, months after within three happening accident, died, said the death of the assured was occasioned said accident.” injury never appeared pleaded promised Defendants in the declaration, manner and form, alleged pre-. issue, seuted the direct whether ass-ired met *12 declaration, accident and described and whether injury “ was occasioned death by personal injuries caused” accident, that as therein of the sum alleged. Payment case iu of such death insured, personal injury occasioned accident within terms of the by any was be policy, and she made to was as a plaintiff', examined witness to claim her defendant support against corporation. “ witnesses as to testified back Several stairs there, being “ back no but witness yard,” testified he that leading Evidence, on Greenleaf § Dec. Clifford, J., dissenting. and there was no tes- fall down steps,” deceased
saw tlie that plaintiff the subject, except given timony upon in the as recited bill deceased, excep- of the and the son and one o’clock, between twelve that testified, tions. She and went stairs he up down husband) got (her (July 18,1866), did knowhow described; not for the long purpose “ he said he had fallen when he came back, but he was gone, himself; killed that he had hit and almost the stairs down the stairs of his head down the back part falling and hurt out back.” which led taken to the of the witness was testimony duly
Objection the, but the declarations of the court overruled husband, as to and the defendants then and there the objection, excepted. testified, examined and that he son was also saw his His with his about twelve o’clock that head father, lying night, aud that he asked him what was the counter, matter, he fallen down the stairs answered, had back and hurt himself bad.” Seasonable was also objection and very of this but court made to introduction testimony, as the defendant it, admitted excepted, appears by transcript. as here stated, of the which are facts,
Viewed in light am drawn from I record, and accurately clearly carefully of the deceased, the declarations opinion, were witnesses, of those inadmissi- in the testimony given Circuit should Court be and that the ble, judgment reversed. third under made not declarations, person, oath,
Mere that the dec- is, is conceded hearsay, argument case in evidence in laration this regarded given that the res therefore, both gestee, testimony admitted as evidence. Dec- original witnesses properly transaction, to a he was larations of though party time if made at the act was were done oath, under in the is material as evidence issue the court, before the act, if were or to unfold its explain of a character to have nature quality, *13 Ct, 412 Company Mosley. Insurance v. J., Clifford, Opinion of dissenting. are in the law of
effect, treated, evidence, as verbal acts, as are not introduced with such, hearsay, act which and to which re principal they accompany, they late, as because are evidence, as a original they regarded part and their introduction in act, evidence is principal deemed to define that act and unfold its true nature necessary and quality.*
But declarations such cannot be received as evi< properly dence, unless the act which principal they accompany relate, to which is, material to the issue itself, to be they sub mitted nor unless the declarations were made jury, at the time the act was done, nor unless were principal they a character to or to act, unfold its true explain nature are admissible as quality, incident they only to. and because act, principal it, and are they ne and define its true cessary explain character.† . character, When the is into the nature and of a inquiry certain transaction, not what was done, Mr. Boscoe, only says what was but also said those the continu present, during ance transaction, admissible for the of illus purpose its character and trating peculiar circumstances.‡ whenever evidence of an Undoubtedly, act done by party admissible, declarations he made, at time the act are also done, if admissible, were aof character they unfold the elucidate and act, because derive a they degree from the act itself, of credit and do not rest entirely upon statement not under oath.§ Unless, however, made at the they time the act was done, continuance of the during transaction constitut- fact, are not principal admissible, ing state case, cannot derive credit from the principal fact, which alone renders them admissible in evidence. and written
Verbal declarations are admissible, Mr. says Tuttle, Connecticut, v. 3 Enos 250. Lincoln, v. Maine, 312; 34 Ward, Corinth Noyes v. Connecticut, 19 269; Meacham, York, v. 210; New Moore Osborn Robbins, Barbour, 482. Evidence, Roscoe 23. ‡ Little, Sessions New Hampshire, § Dec. J., Clifford, dissenting.
Opinion of *14 act, some the ob nature, when accompany Phillips, they of of are the. In which, or motives subject inquiry.” ject, are as evidence, words receivable cases, such says, original time, is the affords said, that what at on the legiti ground, means of the character of mate, if the best, ascertaining of in acts as admit from those such explanation equivocal the mind which affords.* dications of language of that as the author the rule understood by Evidently, were declarations, not admit the unless they would work, the continu done, the act was at the time made during is more ex transaction; the annotator even of but ance the the laid down in rule as he adopts the.leading expressly plicit, must of the res the declarations to be case, part gestee, are done, at the time of the act which they have been calculated to and have been well characterize, to supposed facts the which are and character of they unfold the nature as so to harmonize with them ob intended explain, constitute one viously transaction.† rule, in of arises Much of difficulty application in cases where act, of the especially, from nature principal for a as time, or extends considerable in continuous, no there is diffi or of domicile, bankruptcy; of questions where the act the rule in cases culty principal applying nor is defined as to there time, well well- any single countenance admis ease, considered gives were unless made at the declarations, sion of time such as in the case done, or, act was of riot, principal during of the continuance transactions.‡ as the rules at law, are the same common as rulés Equity’ Walworth, of Chancellor In matter the decision appears by that the held, in which he declarations Taylor,§ parties, in order circumstances, to render them and other attending 1868, 185. Evidence, on ed. Phillips Connecticut, Tuttle, 3 Enos v. Beals, Connecticut, 209; v. Frisbie, Carter 44 Hampshire, 19 New Russell ‡ Comstock, Powell, 322; ley v. Gyde, Bingham, Rid ;2 Price 41 Paige, 617. 9§ Clifford, J., dissenting. admissible a res must be gestee, contemporaneous with the main fact under and to which consideration, intended character.* give rule to be that such declarations inadmis
Suppose sible, unless made at the time done, act was principal still it is contended that the court, rulings admit the declarations in this case, ting sustained falling within laid rule down in the case Commonwealthv. McP and the ike,† opinion court, as majority just rests read, chiefly upon ground. indictment, that case, was for and the evidence manslaughter, introduced showed that deceased, received the morning mortal from ran her where her blow, room, husband, the de* *15 a fendant, to the was, room in the witness, same occupied by and when admitted to the house, murder; room, she crying said she was. Another witness heard killed. the of cry murder, watchman, and went for a and when he returned, the the woman went to room where wounded was, and, other said to him that her husband had among things, told what she stabbed and the witness her, wanted done, if she died.. taken the statement, to as to the
Objection was declaration the wife, of the that defendant had stabbed the her, but court and admitted the the case was removed to the testimony, Court for revision. Other were taken Supreme exceptions the the were all court, to of they overruled, the rulings of court that the statement the as the wife, to cause holding and manner the be of “sustained, the injury, might upon the was of the that nature the testimony res ground are cited in No authorities support gestee.” proposi- and the is tion, point, and opinion, upon brief, very to sentence seems rest mainly upon that upon closing “ Í3as In admission subject, follows: .which testimony must be left character, of this much exercise discretion of the sound judge.” presiding to that all decisions of that court had date, Prior been Coe, Cushing, Greene, Frink Dec. Clifford, J., dissenting. under that declarations rule, strict conformity must evidence, admissible as to be
oath, original in order was done or act at the time have been made principal admitted unless they before committed, explained, mortis; decision and every as declarations articulo since, determined, that case was court, subject, Deference is the same rule. in prescribing equally explicit establish a will made to few of cases be subsequent that proposition. are be mental
Where the or bodily feelings a party and natural of such usual feelings expressions proved, favor.* and evidence in his considered competent original extended however, court, not to be evidence, say Such founded; rule is the necessity beyond statement nature of narration or add, anything.in and the carefully excluded, is to be testimony (unless was made to medical statement patient man) confined to such expressions strictly complaints furnish evidence of, usually naturally accompany, Before present pain expired, existing year malady. facts, the same under a different state question, again to that and in court, view of presented importance and of their the court came occurrence, questions, frequent more at to the conclusion to consider the somewhat subject forth and done, than had theretofore to set large which this class of illustrate and tests principles *16 must be decided: They questions accordingly determined.”† such evidence is not left to 1. That the admission of had as sometimes been discretion of presiding judge, its admission is supposed; governed by principles must be eases as other law, which prin applied particular are in the exercise of a and judicial ciples applied, judgment, that errors of in the case, cases, other judgment examined and be corrected.‡ if it an declaration, has its force itself,
2. That ab- * Charlton, Cushing, Bacon v. 586. 7 Tyngsborough, Cushing, Lund v. 41. 9 † 6 Wright, Manning, Tatham & 151. Neville ‡ [Sup.- Clifford, J., dissenting. statement, stract detached from fact in particular ques- any is tion, not admissible in because it evidence, depends its effect on the credit and it, there- person making fore is hearsay. admissible,
8. That mere narrative is never because such statements are detached from material act which is any per- tinent to the issue. of the
4. That whenever act party may given are ad- evidence, declarations, time, his at also were if calculated to elucidate and missible, explain character and and so act, connected with quality as to derive credit from the act it to constitute one itself, transaction.
5. That there must be a main or or transac- principal'fact are tion, only that such declarations admissible as grow serve transaction, out of the to illustrate its char- principal it, and derive some acter, contemporary degree credit from it. act not,
6. That the main or transaction is case, every time, confined to point of but whether particular necessarily it so or not nature and character depends solely of the act or transaction.
Search is made in vain for decided where the case, tests which control the principles admission regulate such evidence so and with so satisfactorily stated, much fulness and clearness as in that case.*
Narration of the cause manner of has been injury since that decision in the excluded carefully courts of that State, even where the statements were made aby patient as will be seen case of physician, Chapin v. Marlb six decided later. orough,† years the statement case, that the By appears plaintiff called and wished him to examine his physician, say- leg, that it him and the testified, ing gave pain, great physician he said that had been struck a horse, on that leg, four five before. months Perry, Meek Mississippi, Gray, *17 Company Mosley.
Dec. Insurance 41?. Clifford, J., disseating. was Seasonable to the evidence, but the objection trial, at it, admitted and the case was transferred judge, Court, where a new was trial In Supreme granted. case, court be say, must disposing exception which was sustained, admission of the' state- plaintiff’s ment to his had been struck physician, leg by horse; and add, the court that it was a statement of a fact, “ and was used as evidence was, therefore, factIt which shows admitted, to a demonstration, that the wrongly evidence this case was also admitted, because it wrongly was admitted and used as evidence injury and death of the assured were occasioned acci-. alleged dent. Death was occasioned stab, the case oí Common Hacked,
wealth v. and it is that the in that suggested, ruling case doctrine, laid down in' qualifies the preceding case, but there is no foundation as the suggestion, court that the declaration say, evidence was given uttered after the homicidal in the immediately act, of a hearing who was when person the mortal present stroke was given, who heard the first words uttered deceased-, who weiit to after so him, brief an interval .of time, that the declaration exclamation of the deceased am(I stabbed) deemed may fairly the same sentence as that followed after the stab with the knife instantly inflicted. sensations and
Many bodily ailments are of such a char can acter that be known to only who person ex and, in them, view of that fact, the periences Supreme Court that State in the case decided, of Barber v. Merriam,† that, the statements of a to his patient physician, and seat of his when ailments, made for the character pur advice, were admissible in pose receiving an medical for a action personal affirmed injury, they expressly doctrine decisions, to -which previous reference has been made.
* Allen, 2 Allen, VOL. VIII. *18 Clifford, J., dissenting.
Opinion of Declarations of narrative character were offered in again case al.,* of Commonwealthv. Densmoreet the subsequent evidence; lead and the they rejected again hearsay case v. re of ing again approved Tyngsborough Lund affirmed.
Examined in Su- of the decisions light Court .of since case Massachusetts, of Common- preme wealthv. I am of McPike, opinion, rulings Circuit Court, in this no case, find from support any reported in case the volumes of the Massachusetts Reports. is, Next that those be sustained may suggestion rulings the case Rex and of the Foster,† of of authority im case but-those cases are so Thompson Trevanion,‡ to reliable. can be be said reported hardly perfectly they cases, Grant, however, that the reports though meagre, evi the rules of still, are I reliable, am opinion modern decisions are dence there adopted, contrary Mr. are noticed by in both countries. both They specially Evidence, in his valuable Treatise on the Law Roscoe, he with established are difficult to reconcile they says, to extend Both admit the declarations principles.” declara said, of what was they (the particulars though event to in were both made close proximity tions) indeed, says relate, which it is very questionable they render alone is sufficient same whether writer, thafiground them admissible.§ more
Both are also cited by of these cases Taylor, the rules Law Evidence, yet, work upon recent the admission of as tests to regulate promulgates, cases is in those the rule evidence, show that adopted such are as His tests follows: law. leading good as evidence of admissible That-.declarations; 1. though to which or belief of the facts knowledge declarant’s are them, no proof his intentions and Of relate, respecting to show if it therefore, be themselves, and, necessary the fads Payne, Carrington & 325. Allen, 537. Evidence, Skinner, 26. Roscoe’s Criminal § ‡ Dec. «X., Clifford, dissenting.
the existence of such aliunde facts, must be before proof laid the jury.*
2. That, acts, whomsoever done, res although gestae, if the matter if issue, relevaut be irrelevant, yet, or 'declarations,, them, qualifying will, explaining together acts themselves, rejected.† That where an act done evidence a declaration per se, that act well be it reflects evidence,df accompanying act, where the act light upon qualifies is, its own irrelevant to the nature, issue, and where the declara tion se cannot be per received, no case has established the yet rule, that the union of the will two render them admissible.‡
4. That an act cannot be varied, or qualified, explained a declaration which amounts to no more than a by merenar rative of a nor an transaction, past by conversation, isolated nor an isolated act at a later by done, period.§
Condemned all’ these it is tests, impossible admit, that the two cases relied on, as supporting rulings Circuit can Court, law, and if then rul good not, those stand in unsupported or ings well-consid principle, by any ered or American decision. n English the main fact in the case
Obviously, before the court was accident, bill of finds alleged exceptions there was no other evidence to that material prove allegation than the and the son of the de testimony plaintiff, who ceased, knew of what had occurred, what nothing except were told they 'by injured party.¶ Whenever the. or mental an individual bodily feelings.of are material to -be the usual of such feel- proved, expressions for„that made at in the time are admissible ings, question, but admissible to purpose, past prove occurrence, nor were occasioned such prove an accident Evidence, Taylor 1 on 523. Ib. 524. § § Bailments, 524; Ib. Redfield on Carriers and 454. § ‡ § Taylor Evidence, 526, Nutting Gray, Page, 584. § § Tatham, 770; Wright v. Finnelly, 5 Clark & n Adolphus S. C. 7 & Ellis. 389. Bosworth, Griffin, Baker v. 142. ¶ Blanchard v. Putnam.
Statement the case. in foundation of the as.that the declaration alleged claim. plaintiff’s
Mr. also dissents from Justice NELSON opinion this in this and concurs case, of the court, judgment opinion.
Blanchard v. Putnam. testify of a Where, infringement patent, in suit at witnesses law invention, thing patented, judg- or use of the knowledge, previous require- compliance reversed unless ah antecedent ment will be Act, in the notice requiring section of the Patent ments of the 15th residence of those whom places matter the names and special and where the prior knowledge, prove possessed intends to defendant this, although no re- used, record. And appear in the same had been counsel, the case have been for this cause have been asked versal wholly grounds. on other argued Semble, question infringement, on a only proper comparison That the plaintiffs, with that of the described is of the defendant’s machine to plead and that it is no answer to the cause of action pleadings; the defendant is the licensee of the owner of another and that his machine constructed accordance with patent, patent. for District of Court Southern Circuit
Error *20 case thus : Ohio, being Act enacts, section of the 15th whenever Patent of a on the fact relies his defence previous defendant or use of patented, invention, thing knowledge, the names matter, state in notice of
shall special, intends to of those whom of residence he. places and where thing, have prior knowledge'of possessed if he does not used,” been comply same had an.d evidence can received under the no such that requirement issue. general and others, Alonzo Blanchard force, this statute
With an of a patent improvement owners by assignment being Blanchard, to Thomas December wood, in bending granted