180 Mass. 187 | Mass. | 1902
The report of Dr. Kemble to the defendant was no less a “ declaration ” within St. 1898, c. 535, because it was in writing, than it would have been if made by word of mouth. No reason has been offered that seems to us to need an answer why the words of the act should be narrowed from their natural meaning. Difficulties are suggested, to be sure, as to what writings would amount to a declaration. Similar ones might be urged with regafd to spoken words. We will deal with them when they arise. — The statute is not confined to declarations of deceased parties to the controversy. — If the plaintiff had wished to have the use of the paper limited in any way, or any part of it sealed up, he should have asked for instructions. There was evidence that Dr. Kemble had had
We do not feel quite sure what the statement means in the exceptions that an argument objected to as unwarranted “ was allowed to stand, and the plaintiff excepted.” But we do not understand from it that the court ruled that the doctor’s report warranted the conclusion which the defendant’s counsel sought to draw. If the plaintiff had asked a ruling that the report did not warrant that conclusion and it had been refused, he could have saved the question. What he seems to have done was to ask the court to interrupt the argument and stop that part of it on the ground that the inference suggested by it was unsound. It is not the duty of courts to confine arguments to the line of thought destined ultimately to prevail. We have indicated how the plaintiff might have saved his rights ; but even if the plaintiff was right there was no sufficient reason for allowing him to interrupt. Commonwealth v. Byce, 8 Gray, 461. Commonwealth v. Worcester, 141 Mass. 58. Commonwealth v. Poisson, 157 Mass. 510. In Commonwealth v. Scott, 123 Mass. 239, there was a ruling by the judge and the defendant’s rights were infringed in a grave matter.
We should hesitate to say, however, that the argument was unsound. When Dr. Kemble visited the intestate the rib, if ever broken, had knit. He may not have found any traces of a fracture. He had had a talk with Dr. Sheehan, in which the jury were warranted in finding from Sheehan’s testimony that the latter mentioned that a rib was broken. Dr. Kemble’s report mentions the tenth rib as the one broken. It might be inferred from the foregoing facts that the number of the rib thus given was got from Dr. Sheehan. Therefore it might be argued that Dr. Sheehan had given a different account of the case to Dr; Kemble from that which he gave at the trial.
Exceptions overruled.