73 F. 774 | 8th Cir. | 1896
after stating the fads as above, delivered the opinion of the court.
The certificate oí nx mbership in this accident association, on which this action is based, com.-lined the covenant oí this corporation 1o pay to the defendant in error the indemnity it promised in case the death of William B. Shryock resulted, within i#0 days from the date of any accident', solely because of bodily injuries effected by external, violent, and accidental means, and independently of all other causes; and it also contained an express agreement that, the insurance promised thereby should not cover any death which resulted wholly or in part, directly or indirectly, from disease or bodily infirmity. The defendant in error alleged that tffiryock’s death was caused by an injury to him which resulted from an accidental fall on the street. The association denied this allegation, and alleged that, if he was injured by such a fall, his death was not caused by that alone, but resulted, wholly or in part, from some disease' of his heart. The burden of proof «-as upon the defendant in error to establish the facts that William 13. ttlrryoek sustained an accident, and that lhat accident was the sole cause of his death, independentiy of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised indemnity. But if he was affected with a, disease or bodily infirmity which caused hies death, tlx; association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he
On the trial of the case there was evidence tending to show that about 4 o’clock in the afternoon of July 1,1892, William B. Shryock, who resided at Louisville, in the state of Nebraska, went from that place by rail to the city of Omaha, in that state, where he arrived about 5 o’clock in the afternoon of that day; that, some months before, he had been injured by' the fall of a horse upon him, but had recovered from much of the disability caused by that injury; that he was still lame, and wore a rubber supporter on his knee; that he told one of his acquaintances, just before he left Louisville, that he was nervous, and felt badly, that he was going to Omaha, and that he wanted him to keep his grave green if he never saw him again; that after his arrival in Omaha he met another acquaintance at the Millard Hotel in that city, about 6 o’clock in the evening, and went with him to a harness shop, bought a harness, and accompanied him- to the depot; that the baggage master saw him at the depot in Omaha between 7 and 8 o’clock on that evening, and noticed that he was lamer than usual, and looked like a man in pain; that about 8 o’clock on that evening he entered the store of one Keefer, in Omaha, and purchased a harness; that he was very lame and pale, and looked as if he was suffering; that about half past 8 on that evening he entered the store of one Darst, in Omaha; that he remained there an hour and a half, and seemed to be weak and in pain; that Darst then accompanied him to his hotel in Omaha, where he obtained from a drug store a phial of some liquid, and retired to his room, where he was found dead in his bed at 6 the next evening; that an autopsy was held, from which it appeared that he had long been afflicted with fatty degeneration of the heart, and that there were abrasions on his left hip and on his left knee that might have been produced by such an accident as a fall on the street; that his heart was in such a diseased condition that, in the opinion of some of the physicians, a fall which probably produced these abrasions might have caused, and probably did cause, his death; but all the physicians testified that in their opinion the injury from such a fall or accident as these
The sufficiency of the evidence in this case to warrant the verdict is not before ns for consideration, because the record before us discloses the fact that only a portion of the evidence presented to the couid below is contained in the bill of exceptions. X certificate that the substance of the evidence is returned is not sufficient to warrant an appellate court in reviewing the refusal of the trial court to direct a verdict. Railway Co. v. Washington, 4 U. S. App. 121, 1 C. C. A. 286, and 49 Fed. 347, 350, 353; Railway Co. v. Harris, 27 U. S. App. 450, 12 C. C. A. 598, and 63 Fed. 800, 805; Taylor-Craig Corp. v. Hage, 16 C. C. A. 339, 69 Fed. 581.
But it is assigned as error that the trial court admitted in evidence the testimony of William Farsi that, when the deceased came to his store, between three and four hours after he arrived in Omaha, he asked him what the matter was with him, and he said in reply that In going up from the depot lie had slipped, got a fall, and struck something hard, and that he had hurt his side and the same leg that was injured before; that the court admitted the testimony of Keefer, to the effect that when he was selling him a harness at his store, about three hours after the and val of the deceased in Omaha, the latter told him, in answer to Ms inquiry why he walked so lame, that he had slipped and hurt his ankle; and that the court allowed the baggage master, at the depot where Shryoek went to ship Ms harness, to testify that, between two and three hours after his arrival in Omaha, he told him, in answer to a like question, that he had slipped and hart the same leg that he hurl: before. Each of these three witnesses testified that, when the deceased made these statements to them, respectively, he was lamer than usual, and Darst testified that he looked pale, said he was in pain, and acted as though he was. The objection urged upon our consideration, however, is not to the testimony of these witnesses, to the appearance, symptoms, and statements of the deceased to them as to his present condition and sufferings Avhen lie made these statements, and we dismiss that question here. The objection urged is that Ms statements that he had slipped and fallen, and struck against something hard, some hours before these statements were made, wrere mere narratives of a past occurrence, and were incompetent to prove the fact of the fall and accident. The rules of evidence which govern the trial of actions insure the stability, and measure the extent, of the rights of persons and property. Reversals, modifications, or variations of these rules lend to produce instability and uncertainty in these rights, and breed distrust of courts and of governments. The rule that hearsay testimony is incomnetent evidence of a past occurrence rests upon settled principles of the law, the maintenance of which is essential to the preservation of personal liberty and properly rights. The enforcement of this rule is not discretionary with the trial court, and its violation is fatal error. Waldele v. Railroad Co., 95 N. Y. 274; Tilson v. Terwilliger, 56 N. Y. 273; People v. Davis, Id. 95; Reg. v. Bedingfleld, 14 Cox. Cr. Cas. 341; Meek v. Perry. 36 Miss. 190,
In Mima Queen v. Hepburn, 7 Crunch, 290, 295, Chief Justice Marshall said:
“It was very justly observed, by a great judge, that ‘all questions upon the rules of evidence are of vast Importance to all orders and degrees of men. Our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered for their antiquity, and the good sense in which they are founded.’ One of these rules is that ‘hearsay’ evidence is, in its own nature, inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case, is not the sole ground of its exclusion. Its intrinsic weakness, its incompeteney to satisfy the mind of the existence of the fact, and the frauds which might he practiced under its cover, combine to support, the rule that hearsay evidence is totally inadmissible. * * * If the circumstance that the eye-witnesses of any fact he dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might he supported by proof so easily obtained.”
This was a just and timely warning against laxity in the enforcement, and carelessness in the application, of this rule. Why do not the statements of these witnesses that the deceased told them, two hours or more after the occurrence, that he had slipped and injured himself, fall under its ban? The argument in support of their admission is that they were a part of the res gesta' at the time of the fall, and that for this reason they come within the well-known exception to this rule, that, whenever the act of a party may be given in evidence, bis declarations made at the time of the act are not hearsay, but constitute verbal acts, and are for that reason admissible, if they are calculated to elucidate and explain the character and quality of the act, and were so connected with it as to derive credit from the act itself, and to constitute one transaction with it It is, however, equally wrell settled that statements which constitute a mere narrative of a past transaction are never admissible in evidence because they are detached from any material act that is pertinent to the issue. Insurance Co. v. Mosley, 8 Wall. 397, 105, 116; Railroad Co. v. O’Brien, 119 IT. S. 99, 101-, 105’, 7 Sup. Ct. 118; Fordyce v. McCants, 51 Ark. 509, 513,11 S. W. 691; Railway Co. v. Becker, 128 111. 515, 21 X. E- 521; Railway Co. v. Ivy, 71 Tex. 109, 9 S. W. 316; Adams v. Railroad Co., 71 Mo. 553; Tennis v. Railway Co., 15 Kan. 503, 25 Pac. 876; Railway Co. v. Holland, 82 (ta. 257, 10 S- É. 200. The question is, were the statements of the deceased that he slipped and fell, made as much as two hours after the alleged fall, verbal acts done at the time of the fall, and a part of that occurrence, or were they mere narrations of thaT; occurrence? The question seems to answer itself. After the slip and fall occurred, if they occurred at all, the deceased went about his business, met a friend at the hotel about an hour later, pursuant to a prior engagement, went with him to a harness shop, bought a harness, went with him to the de
Counsel for the defendant in error cite but a single cast; in support of their contention that these declarations were a part of the res gesta; at the fall, and that case is Insurance Co. v. Mosley, 8 Wall. 397. Two questions were presented at the hearing in tin; supreme court in the Mosley Case — First, wind her or not the declarations of a deceased person as to his bodily injuries and pains some time after he suffered a fall were admissible to prove his physical condition at' 1he time they were made; and, second, whether or not Ms declarations, made immediately after tin; fall, that he had fallen, were competent to prove that fact. The court answered the first question in the affirmative, on the ground that his declarations of Hie former class related to present existing facts at the time they were made. It answered The second question in (he affirmative, oil the ground that Hu1 declarations of the latter class were made at the time and plací1 of the accident, and immediately thereafter. These declarations of the la iter class were two. — one* to his son. and smother to his wife. His wifi1 testified that between 12 and 1 o'clock at night, sifter she and her husband had retired, lie got up and went down stairs; that she did not know how long he was gone, but when hr came back be said he bad fallen down tin1 back si stirs, and almost killed himself: that he verified as soon as he got into the room; that he did not sleep any more that night; and that she was up with him all night. The son testified that he slept, down stairs, and that about 12 o'clock that night he saw Ms father lying with his head on the counter, and he said lie had fallen down the back stairs, and hurt himself very badly. Thus it will Ik; seen that these deelaraí ions were made within a few moments of the fall, at tin; place where it occurred, to the first persons tin1 deceased met after the accident, and whim he vías suffering severely therefrom. The ruling that they constituted a part of Hie same transaction with the fall
Perhaps these decisions sufficiently illustrate the rule which forbade the admission of the declarations of the deceased in this case to prove the fact of the accident. If not, a large number of authorities in support of this rule, in addition to those we have cited, supra, will be found in 21 Am. & Eng. Enc. Law, p. 104, note 2, and id. p. 105, note 1. The declarations here in question were not a part of the res geste at the fall, and were incompetent to prove it, because they were not made during the continuance of that transaction, but.after it had ended, because they were not made until subse
It is argued that tids judgment ought not to be reversed on this ground, because there was other evidence of this fact in the case sufficient to sustain the verdict, and its admission was not prejudicial to the plaintiff in error. But the court below expressly charged the jury to take these declarations of the deceased into consideration in deciding whether or not he had slipped or fallen, and whether or not lie died from the effects of that fall. The jury may have been persuaded by these declarations to find a verdict for the defendant in error, when, in their absence, they would Lave found against him; and it is impossible for ns to say that they were in no way influenced by them. The presumption is that' error produces prejudice. It is only when it appears so clear as to be beyond doubt that the error complained of did not prejudice, and could not have prejudiced, the party against whom it was made that the rule that error without prejudice is no ground for reversal is applicable. Deery v. Cray, 5 Wall. 795, 808; Gilmer v. Higley, 110 U. S. 47, 50, 3 Sup. Ct. 471; Smith v. Shoemaker, 17 Wall. 630, 639; Moores v. Bank, 104 U. S. 625, 630; Railroad Co. v. O’Brien, 119 U. S. 99, 103, 7 Sup. Ct. 118.
It was error for the court below to admit testimony on behalf of the defendant in error that the deceased was not addicted to the use of intoxicating liquors, because this testimony was not relevant to any issue in the case. The plaintiff in error had alleged that Shryoek’s death was caused by disease or bodily infirmity, and had made no averment that it was produced by intoxication, or by any other of the excepted causes named in the certificate in suit.
Bor the same reason the court rightly held that evidence Lending to show that Shryock committed suicide, offered on the part of the plaintiff in error, was irrelevant and inadmissible. The association pleaded no such defense, but pleaded that the death was caused by disease,- — a defense inconsistent with the theory of suicide.
There are other errors assigned in this case, but some of the questions they present may not. arise upon a second trial, and no good purpose would be subserved by extending this opinion for their discussion.
The judgment below must bo reversed, with costs, and the cause remanded, with directions to grant a new trial; and it is so ordered.
