46 Wash. 145 | Wash. | 1907
The respondents recovered a judgment against appellant, on account of personal injuries sustained by Mrs. McCord. The appeal is from that judgment. The facts show that Mrs. McCord and a companion, Mrs. DeWitt, were driving in a buggy along Seventh avenue in the city of
During the trial the appellant called a witness who, after testifying that he was on the car at the time of the collision, that he immediately left the car and went with other bystanders near to where the ladies were, that he saw both of the ladies, and that Mrs. McCord was talking, was asked this question: “What, if anything, was said about who was to blame?” Answer: “Well, I stood there for a moment, and the lady that lay on the grass, when she came to she rose up and got up on her feet and was fixing her hair, as ladies would, you know, and her hat, and the first words I heard her speak at all was”— Mr. Stratton, interrupting: “Just a moment. This, as I understand, refers to statements made by Mrs. DeWitt.” Mr. Dovell: “In the presence of Mrs. McCord.” Mr. Strat
The general rule upon this question is correctly stated, we think, in 16 Cye., page 956, as follows:
“A statement made in the presence of a party, but not connected with his conduct at the time when it was made, is mere hearsay, and not evidence against him of any fact narrated in such statement. But where a definite statement of a matter of fact is made in the presence or hearing of a party so that he understands it, in regard to facts affecting him or his rights, and the statement is of such a nature as to call for a reply; and the party addressed is possessed of knowledge concerning the matter referred to, enabling him to reply if inclined to do so; and the nature of the statement, the right to information of the person who makes it, or other circumstances are such as to render a reply proper and natural, the statement, in connection with a total or partial failure to reply, is admissible evidence tending to show a concession of the truth of the facts stated.”
And in Greenleaf on Evidence, vol. 1 (16th ed.), § 197, as follows:
“But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness or silence.”
It has been held that declarations similar to the one here sought to be proven were conclusions and not statements of
The judgment is affirmed.
Hadley, C. J., Fullerton, Crow, and Dunbar, JJ., concur.
Boot, J., having been of counsel, took no part.