Sylvester v. New York, New Haven, & Hartford Railroad

217 Mass. 148 | Mass. | 1914

Sheldon, J.

The evidence of Jeffrey’s statements does not appear to have been admitted as the declaration of the alleged agent to show the nature and extent of his authority. That would have been incompetent. Brigham v. Peters, 1 Gray, 139. Baker v. Gerrish, 14 Allen, 201. Stollenwerck v. Thacker, 115 Mass. 224. But the evidence was competent as the declarations of a deceased witness. R. L. c. 175, § 66. We must infer that the necessary preliminary findings were made before the admission of the testimony. Dickinson v. Boston, 188 Mass. 595, 597. Evidence of his declarations was competent, just as his testimony to the same effect would have been admissible if he had been living.

There was evidence that Jeffrey had requested the plaintiff to continue his care of Litchfield, and had said that the defendant “would fix him up all right.” And it could be found on Jeffrey’s declaration that the defendant had sent Jeffrey to say this. The weight of the evidence was solely for the jury. Bourne v. Whitman, 209 Mass. 155, 172. Pritchard v. Old Colony Street Railway, 216 Mass. 221. Commonwealth v. Holmes, 119 Mass. 195, 199.

What we have said disposes of all but the third and fifth of the defendant’s requests for rulings.

The third request could not have been given. Assuming that there was no evidence to prove the special promise of the defendant alleged to have been made in consideration of the plaintiff’s forbearance to press his claim pending Litchfield’s action against the defendant, yet the other averments of that count, of which there was evidence, afforded sufficient ground for recovery.

The defendant’s fifth request ought to have been given in substance, and the instruction actually given as to “first aid” was too broad. But it sufficiently appears that the defendant was not prejudiced by this error. The plaintiff claimed to recover in all $392, with interest from November 1, 1909. But neither in his declaration nor at the trial did he make any contention that he could recover the whole amount as for “first aid” given to Litchfield. Even under the broad definition of those words given by the judge, the plaintiff could not upon that ground have had a verdict for the whole of his demand. We scarcely see how any part of the services rendered after September 10 could have been said to be included under the words “first aid.” Certainly the items in the plaintiff’s account dated October 3 and October 7 could by no possibility have been so included. But the plaintiff had a verdict for $476.67, which is the total amount of his demand with interest to the day of the verdict. This makes it certain that he did not recover merely for the “first aid” given to Litchfield, but upon the ground that he rendered all his services upon the employment of the defendant and its undertaking made through its authorized agent to pay him therefor. We already have seen that such a finding was authorized. Accordingly this exception cannot be maintained. St. 1913, c. 716, § 1.

Exceptions overruled. '