266 Mo. 604 | Mo. | 1916
Lead Opinion
Original
action in certiorari, the purpose of which is to have quashed and for naught held, the judgment of the Kansas City Conrt of Appeals,
Prom the fact that this finding of facts does not say that the young woman spoken to was in the view and presence of Dr. Howard, and the process server, Mr. "Wofford, we are justified in the conclusion that she was not in the actual presence of either, at the time. We said that the actual records in a case might make it appear to be a violent presumption to say that we would presume that the Court of Appeals had stated
“Q. You went up there to serve the writ at Dr. Tiffany’s office? A. Yes, sir.
“Q. Who did you see there? A. Dr. Howard, at the first. Dr. Tiffany was not there.
“Q. Dr. Tiffany was not there the first time? A. No.
“Q. What did you say to Dr. Howard, or what did you give him, if anything? A. I served the petition, and the writ attached.
“Q. Who else was there? A. Some young woman^ acting as an office girl, or typewriter, or something, or bookkeeper.
“Q. Do you know her name? A. I heard Dr. Howard call it. It seems to me, ‘Rose,’ ‘Miss Rose,’ referred to her as ‘ Miss Rose. ’
‘‘Q. Miss Rose McAllen? A. I don’t believe I heard him say ‘Miss McAllen,’ but ‘Miss Rose.’
‘‘Q. Did you give Dr. Howard a copy of this summons and the petition? A. I did.
Q. What, if anything, did he say when you gave it to him?
‘‘Mr. Scarritt: We object on behalf of Dr. Tiffany, as secondary evidence, as hearsay, and not as tending to sustain any of the issues raised by the pleadings, and irrelevant and immaterial.
‘‘The Court: The objection, so far as Dr. Tiffany is concerned, will be sustained.
‘‘To which ruling of the court the plaintiff at the time excepted and still excepts.
‘‘Mr. Scarritt: We make the same objection on behalf of the defendant, Dr. Howard.
‘‘The Court: Objection overruled.
“To which ruling of the court the defendant at the time excepted and still excepts.
*613 “A. He didn’t say anything to me.
“Q. Did he say anything to anybody else? A. Not at that time. After we started to go downstairs he, the doctor, either called the young lady or spoke—
“Mr. Scarritt (interrupting): Same objection to this conversation that is now in process of being made on behalf of Dr. Tiffany, that we made before.
“The Court: The same ruling as before.
“To which ruling of the court the plaintiff at the time excepted and still excepts.
“Mr. Scarritt: We make the same objection on behalf of the defendant, Dr. Howard.
“The Court: Same ruling as before as to Dr. Howard.
“To which action and ruling of the court the defendant at the time excepted and still excepts.
“A. (Continuing) After we started downstairs, he either called to her up the stairway or through a speaking tube, and asked her if she had any record of the Mary Coffey case, and — shall I go ahead?
“Q. What did she say to him?
“Mr. Scarritt: We object on behalf of the defendant, Dr. Tiffany, as being secondary evidence, and a declaration not made by the defendants or either of them, or by anyone having any personal knowledge of the transaction referred to; it calls for a statement that was impertinent, under the circumstances, and it deserves no notice — that is on behalf of Dr. Tiffany.
“The Court: It may be understood you will renew your objections to all of this testimony, and that I will make the same ruling, without you doing so.
“Mr. Scarritt: This is a fuller objection, it is calling for a different conversation than the former question — that is the reason we make the objection now. It is calling for a statement, as I understand it, through a speaking tube.
“ (Question read.)
*614 “The Court: Where was Dr. Howard?
“The Witness: Standing on the steps.
“The Court: Did you see him?
“The Witness: Yes, I was right alongside of him.
“The Court: Did you hear her answer?
“The Witness: Yes.
“The Court: Objection overruled.
“To which ruling of the court the defendants at the time excepted and still except.
“A. He asked her if she had a record of the Mary Coffey case. She said she had; that that was the school teacher that he dropped iodine in her eye and put it out. ’ ’
It will be noted that the process server was not definite whether the alleged conversation was held by talking to the girl up the stairway or through a speaking tube. The “speaking tube” portion of the facts is omitted by the Court of Appeals and in a close case might be of much importance, but with the view that we have of the disclosed facts in the opinion, it is not so material in the instant case. We have already said we can presume that the court found all the facts in its opinion, and from that finding, as it does not specifically appear that the girl was in the actual presence of Dr. Howard and the process server, we will take it as a fact that she was not. The facts found show the girl "to have been in the office, and they do not show her to have changed positions after the service of process and this alleged conversation. By the facts found, the girl being in the office and the alleged conversation being on the stairway, the girl could not well have been in the actual presence of either Dr. Howard or the process server. Of course, the actual testimony of the witness makes this point clearer. This testimony, however, we have cited for illustration rather than use.
Under these facts the questions are (1) was there error in the admission of this testimony as tending to show that Dr. Howard admitted his negligence, and (2) was such ruling violative of previously pronounced doctrines of this court upon like or similar questions ? We have no hesitancy in saying that the admission of this evidence was error, nor have we any doubt that its admission contravenes the announced law of this court, as well as other courts. Under the facts and-rules of law, Dr. Howard was undér no obligations to engage (at long range and with a party out of his sight and presence) in a dispute with the girl over a voluntary statement of hers, and one wholly irresponsive to the question asked. She was not asked what the record would show but merely if she had kept a
Here the argument of the court misstates the facts it had previously found, and upon this misstatement of the facts the competency of this evidence is made to turn. Howard at no time asked for the contents of the record and his question in no way called for any such reply.
We do not deny the rule that under given circumstances an admission may be implied from silence, but what we do say is that no court has gone so far as to hold that a man must deny a mere voluntary statement made by a party out of his presence, when to deny it would require him to hurl his denial to a woman out of his presence and in the employ of a co-defendant. And further when he would be required to hurl his denial up a stairway. In State v. Hamilton, 55 Mo. l. c. 522, it is said: “It is not in all instances, where declarations are made in the presence and hearing of a person, that those declarations can be given in evidence against him; they frequently call for no reply and sometimes they are impertinent and deserve no notice.”
In State v. Young, 99 Mo. l. c. 674, one Craft said to Wilson, the marshal having Young, the defendant, in custody, in the presence of Young, “You have got
In State v. Young, supra, this court has cited with approval the case of Commonwealth v. Kenney, 12 Metc. (Mass.) 235. In that case Chief Justice Shaw, with his usual analytical mind, thus states the rule: “If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes a reply, wholly or partially admitting their truth, then the declaration and the reply are both admissible; the reply, because it is the act of the party, who will not be presumed to admit anything affecting his own interest, or his own rights, unless compelled to do it by the force of truth; and the declaration, because it may give meaning and effect to the reply. In some cases, where a similar declaration is made in one’s hearing, and he makes no reply, it may be a tacit admission of the facts. But this depends on two facts: First, whether he hears and understands the statement, and comprehends its bearing; and, secondly, whether the truth of the facts embraced in the statement is within his own knowledge, or not; whether he is in such a situation that he is at liberty to make any reply; and
This approved rule by this court contains several ideas of importance here. It shows that a person is not always called upon to speak. First, if the party making, the statement is a stranger, he is not called upon to reply. The word stranger as here used has reference to a party other than a party to the suit or controversy. There is also the further idea that the party need not act if he thinks his security will be best subserved by silence. In other words, the question of whether a person is called upon to make a reply is wholly dependent upon the circumstances, and we reiterate that neither this court, nor any other court, has ever held that it was required of a person charged with an act to answer a voluntary statement of the employee of a co-defendant, when such employee was not even in the presence of the party, and when to reply he would have to hurl his reply up a stairway to a woman in the office of a co-defendant, whose interest might be diverse to him.
In State v. Glahn, 97 Mo. l. c. 694, it is said: ‘■‘The statement of the witness Lon Wheeler that he thought the man could be found in the field who committed the murder, should be excluded. It is true this statement was made in the presence of defendant,
Section 197 of volume 1 (14 Edition) of Greenleaf on Evidence, so far as material, reads: “Silence cmd acquiescence. Admissions may also be implied from the acquiescence of the party. 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 this passiveness or silence, (b) The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but also as would properly and naturally call for some action or reply, from men similarly situated.”
This rule emphasizes the matter of the circumstances of the alleged statement. This is one of the crucial questions in this case — were there circumstances such as to call for a reply? We have outlined and the Court of Appeals have outlined them. The Court of Appeals wholly disregarded this rule as to the surrounding circumstances, when they held that Dr. Howard had to herald up a stairway a reply to a voluntary statement made by the employee of a co-defendant, and especially the rule which allows such a person to consider his own personal security in refusing to make a reply.
In one of plaintiff’s briefs in the case, it is stated that Dr. Howard stated in evidence that he used dionin
Our learned brothers of the Court of Appeals failed to follow the rule approved by this court in the cases, supra, when they said that this evidence was competent under the circumstances and facts which they have set out in the opinion.
In the very early case of Phillips v. Towler’s Administrators, 23 Mo. l. c. 403, we recognized the extreme danger in admitting such testimony as was admitted in this case. In that case we said: “The court erred also in allowing the remarks of Robert Towler, made in the presence of the intestate, to go to the jury. They were to the fact that ‘the girl had burned plaintiff’s stable, and confessed it.’ The intestate, it seems, made no reply, and this was received as an admission of the fact on his part, impliéd from his supposed acquiescence in what was thus said in his hearing. In regard to these admissions inferred from acquiescence in the verbal statements of others, on the maxim, ‘Qui tacet consentiré videtur,’ it has been most justly remarked, that nothing can be more dangerous than this kind of evidence, and that it ought always to be received with caution, and never admitted at all unless the statements be of that kind that naturally call for contradiction — some assertion made to the party with respect to his rights, which by his silence he acquiesces
We have underlined one clause peculiarly applicable. The courts draw the distinction, under the circumstances of the case, as between statements made by parties interested and strangers. If John Jones had a claim against me and in a statement openly said I owed him for certain reasons, and I declined to make any reply, that is one case. But if some third person, having no connection whatever with John Jones, said to me, You owe John Jones for certain reasons, that is another case. Between the two the books generally, and the cases in this State, draw a distinction. It is an impertinence for one not interested to tell me that I am liable to John Jones. Such impertinences require under our rules, no answer. It is likewise just as much of an impertinence for a stranger to the- controversy to say to me, You owe John Jones by reason of your negligence. There can be no distinction drawn between the two supposed cases. All considered, there' are not less than two and perhaps three expressed rulings of this court set at naught by the ruling-of the Court of Appeals in this case. These we have tried to outline, supra, thus: (1) the physical situation of the parties did not demand a denial; (2) the relationship
Thus, in the very recent and most excellent work, 1 R. C. L. p. 478, it is said: “Intimately connected with admissions that are implied by -the acts or conduct of the party are admissions by silence.or acquiescence. If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes no reply, it may be a tacit admission of the facts stated; depending upon whether he hears and understands the statement, and comprehends its bearing, whether the truth of the facts embraced in the statement is within his own knowledge, whether the circumstances are such as to afford hum am opportunity to act and speak freely, and whether the statement is made under such circumstances and by such persons as naturally to call for a reply if he did not intend to admit it. So, if the matter is- of something not within his knowledge, or if the statement is made by a stranger whom- he is not called on to notice, or if he is restrained by fear, by doubts of his rights, or by the belief that his security will be best promoted by his silence, then no inference of assent can be drawn from silence.”
Bear in mind that “a stranger” as used in all these rules means one not a party to the suit or controversy.
In fact, und-er the weight of general authority evidence of this character is considered to be so weak in probative force that it is rarely ever admitted, The circumstances must point very clearly to the necessity for reply, before it can be admitted at all. The books look upon it (admission by his silence) as the weakest of all evidence in probative force, but yet as most dangerous to a defendant in the trial. That the verdict in this case could not have been obtained without this prejudicial evidence, I have little doubt. That the unlettered.(scientifically speaking) process server misunderstood iodine for dionin, I have little doubt, if the talk took place at all. All the circumstances of the case point that way. However these last few lines are beside the question, and only serve to show that even strict legal rules may at least sometimes work out righteous results. For the reasons aforesaid, the judgment of the Court of Appeals should be quashed.
It is so ordered.
Dissenting Opinion
(dissenting) — I do not concur in the majority opinion.
The limiting of the review of this case in the majority opinion to an examination of the opinion of the Court of Appeals is in accord with the qualified power granted by certiorari to the Supreme Court under the Constitution (Art. VI, sec. 6, Andt. 1884) to supervise the rulings of such courts, and is not subject to objection.
The field of operation of the writ under the power granted by the Constitution is much more limited
It is urged that the office attendant was not personally present when she made the damaging statement to Dr. Howard in response to his inquiry to which he made no reply; that she was not his employee, but that of his co-defendant, Dr. Tiffany; that her statement was not in response to Dr. Howard’s inquiry, and hence was a mere impertinence and that he was not called upon to reply thereto. In view of all of which it is held that the ruling of the Court of Appeals in approving the admission of testimony in
Visual and immediate physical presence is not necessary to authorize the application of the ruling which renders testimony in regard to a damaging statement competent and construes silence, under a proper statement of facts, to be an admission of the truth of such statement.
So far as the matter of personal presence is concerned, proximity within a distance sufficient to permit the hearing and understanding of what is said is all that is required. The person making the statement, therefore, should be so situated that the one in whose hearing it was made and whose duty it may be' to reply to same may be enabled to hear and understand the statement and thus comprehend its meanng. It is not contended that Dr. Howard did not hear and understand the statement. If this fact were not conceded the circumstances would justify no other conclusion. He made the inquiry in regard to the case he had treated and of which she had kept the record. She heard and understood him, because she replied thereto, designating the patient. That he heard and understood her is evident from the testimony of the deputy sheriff who was in his immediate presence when the reply was made, and who not only heard but comprehended what she said. In the face of these facts, what did it matter whether the attendant was within the sight and touch of Dr. Ploward when she made the statement or in Dr. Tiffany’s office in another room?
The cases may he examined in vain for an authority holding that a damaging statement of the character here under consideration is not admissible because not made in the immediate presence of one
The fact that the office assistant was not an employee of Dr. Howard, but of his co-defendant, is urged in the majority opinion as a reason why he was not required to deny her statement. The rule regulating the admission of evidence of the character here under consideration does not in reason, and should not, require that the person making the damaging statement shall bear any relation to the person whose duty it may have been to deny the statement, to avoid the implication which the law permits that silence indicates acquiescence. The test of admissibility is not the relation of the parties, although this may and often does afford opportunities for an understanding of the matter not otherwise obtainable; but did the person making the statement, irrespective of any relation, have such a knowledge of the subject as to enable him or her to speak understanding^' in regard thereto? Let it be conceded that the office assistant was the employee of Dr. Tiffany. Dr. Howard, on account of his professional relation, must have had a general knowledge of the case concerning which he made the inquiry. She must have had a particular knowledge of same, on account of her custody and keeping of the records of - the office. Her knowledge and understanding of the matter, therefore, could in nowis-e have been different or more complete had she been in his employ instead of that of Dr. Tiffany. In addition, the inquiry made by Dr. Howard is, in itself, proof of her possession of such information in regard to the case as to render testimony concerning the statement, as preliminary to showing his silence, clearly admissible. If she did not possess this knowledge, for what purpose was the inquiry made, espe
The specific inquiry which evoked the statement around which this controversy centers was made by Dr. Howard to the office assistant in his asking her “if she had the record in the Mary Coffey case.” She replied “that she had and that the patient was the school teacher that he had dropped iodine in her eye and put it out.” It is announced in the majority opinion that .this reply was not responsive to the inquiry and hence it was not incumbent on the Doctor to deny same.
A statement may be irresponsive so far as it relates to the inquiry which prompted it, but this does not measure the duty as to the denial of same by one whose rights are thereby affected and whose silence may import an admission as to the truth of the statement. The measure of duty demanding a denial depends upon whether the rights of' the person concerning whom the statement is made is affected thereby. If such statement is adverse and is made by one who is enabled from knowledge of the facts to speak understandingly, then a denial is incumbent upon the person referred to.
Here the statement was not made by a stranger, but by one who, on account of her relations, was familiar with the ease. The statement had reference to a matter with which the Doctor was also familiar, otherwise he would not have made inquiry for further informaton in regard to same. In addition, and of prime importance in determining whether or not the statement may be regarded as an impertinence, it is evident that it had reference to the Doctor’s rights and if unchallenged could not be construed otherwise than as adverse to his interest. His duty, therefore, to deny same was plain.
The Court of Appeals pertinently savs in regard to this phase of the case:
*629 “Had the charge come from an impertinent stranger, no admission of its truth could be implied from the silence of the accused. It did not come as an impertinence, but in answer to a question asked by the accused of the young woman who was a sort of factotum in the office of defendants, received their patients, inquired into their business and kept the office record of cases treated by defendants. The question asked by Dr. Howard called for information kept by her in the course of her employment for the benefit and future use of her employers, and her answer was in direct response to that question. It purported to give him the facts relating to the history of the case as she had received them from him, and it would have been most unnatural for him not to deny such a charge if it were false, no matter who was present. It was just as though she had said: 'You told me you put out the woman’s eye and that is the history of the case in this office.’ A charge of that kind, if false, would bring a denial from any man under any circumstances. The evidence was properly admitted.”
In Commonwealth v. Kenney, 12 Metc. (Mass.) 237, it is announced that where a damaging declaration is made in one’s hearing and he makes no reply, his silence may be held to be a tacit admission of the truth of the declaration under these conditions: that he heard and understood the declaration and comprehended its meaning; that the truth embraced therein was within his knowledge; that he was at liberty to make a reply; that the declaration was made under such circumstances and by such a person as to demand a reply, if he did not intend to admit it.
"We realize that we are not required to go beyond our own cases to determine the admissibility of testimony in a case submitted for our determination, as is the one at bar. But to avoid citations to numerous authorities we have found it most convenient to em.-'
The following cases are either discussed in the majority opinion or are cited by the petitioners for the writ herein as in conflict with the rulings of the Court of Appeals in the admission of this testimony: State v. Hamilton, 55 Mo. 520; Phillips v. Towler’s Admr., 23 Mo. 401; State v. Young, 99 Mo. 666; Adams v. Railway, 74 Mo. 553; Wojtylak v. Coal Co., 188 Mo. 260; Shake v. Mullins, 101 Mo. 517; State v. Glahn, 97 Mo. 679. We will review them in their order to enable it to be determined, from a fair statement of the facts in each, whether they contravene the ruling under review.
In State v. Hamilton, supra, the remarks received in evidence were not, as in the instant case, directed to the defendant, and hence did not charge him with any offense. The Hamilton case is referred to and. distinguished by the Court of Appeals as presenting a different state of facts from those in the case at bar.
In Phillips v. Towler’s Admr., supra, a remark was made in the presence of the owner of a slave that the slave had burned the building in controversy and had confessed, to which the owner made no response. It was not shown that the owner had any personal knowledge of the transaction and, of course, the remark made no charge against him. His silence under these circumstances, being the silence of one not personally accused, could in no sense be held to be an acquiescence in the truth of the statement.
Adams v. Eailroad, supra, instead of containing a ruling adverse to that of the Court of Appeals, is an authority in support of same. The Adams case holds that the declarations of an agent are admissible as evidence against his principal only when made while transacting the business of the principal and as a part of the transaction which is the subject of the inquiry in the suit in which they are offered. The office attendant, in the case in controversy, was engaged in the transaction of Dr. Howard’s business and was therefore his agent when she was asked by him if she had the record in the Coffey case, and her reply was made in response to this inquiry; that the inquiry was a part of the entire transaction is evident from the fact that the deputy sheriff had just served a summons upon Dr. Howard in the suit brought by the plaintiff for the injury about which the inquiry was made.
In Wojtylak v. Coal Co., supra, there is no ruling which by remote inference can be said to sustain the petitioners ’ contention.
In State v. Mullins, supra, the declaration charged to have been made was in a judicial proceeding and hence not within the rule.
In State v. Glahn, supra, it is held that the rule m regard to admissions inferred from acquiescence in the verbal statements of others has no application except when the statement calls for action or reply on the' part of the defendant. With this statement of the rule
The decision of the Court of Appeals admitting the testimony in question did not contravene any previous ruling of this court on the subject. More than this, it is in accord with the strong current of authority elsewhere. There is, therefore, no authority for the exercise of our supervisory power. [2 Wigmore on Ev., sec. 1071; 2 Mod. Ev., Chamberlayne, secs. 1418-1433 ; 2 Jones Com. on Ev., sec. 289; and Wigmore on Ev., sec. 1071, containing reference to latest cases.]
In view of the reasons stated and the conclusions flowing therefrom, it follows that our writ should be quashed, which will result in an affirmance of the judgment of the Court of Appeals.