126 Va. 141 | Va. | 1919
delivered the opinion of the court.
An electric railway car, owned and operated by the Washingtori-Virginia Railway Co., collided with a motor truck owned and operated by the Washington Brick and Terra Cotta Co. at a point where a private road leading from the latter company’s brick plant crosses the tracks of the railway company. Miss Anna E. Deahl was a passenger on the electric car and claimed that as result of the collision she sustained physical injuries for which she brought an action against both companies. There was a verdict and judgment in her favor against the railway company for the sum of $5,000, and to that judgment this writ of error was awarded.
The chief objection urged against this statement as evidence is that it violates the rule against hearsay. The soundness of this objection depends upon the relationship which the declarant bore to the defendant, and the capacity in which he was acting at the time he made the statement. He was not present when the accident occurred and only knew of the circumstances attending it by information ob
It appears that Travers was the claim agent of the defendant company and had called on Miss Deahl to see her in regard to the accident' itself and the manner in which she was hurt. The evidence does not show just what his duties were, but the general scope and purpose of a railway claim agent’s business are matters of common knowledge. There'can be no doubt that he called to see Miss Deahl in connection with an investigation of the accident and a determination of the company’s attitude and probable liability as to any claim she might make. It is true that he had nothing to do with the operation of the car, and was not in any way a participant in the occurrence, but. the investigation and settlement of the plaintiff’s claim against the'company for personal injuries necessarily involved the acquisition on his part of accurate information and knowledge as to the cause of the action. Such information and knowledge were peculiarly essential to his branch of the company’s business, and his declarations made in regard thereto in the course of his negotiations with the plaintiff fall easily and plainly within the rule permitting proof of declarations made by agents within the realm of their agency, and during the transaction of business in which they are employed. Lynchburg Telephone Co. v. Booker, 103 Va. 594, 604, 50 S. E. 148. and cases cited.
*147 “Q. Did you see the motorman when he got off his car?
“A. Yes, sir. I was standing right there at the time. I got down and was standing there when he jumped out. I was out there first though, and he walked up to me and asked me—•
“Q. (Interposing). Did he walk straight from the motor when he got out?
“A. Yes, sir.
“Q. He walked straight from the motor when he got out?
“A. Yes, sir. I was the first one he spoke to.
“Q. What did he say?
“A. He asked me why did I cross and I asked him why did not he blow, and I told him that I did not see him, and he said he did blow and I contradicted him and he said that was the third time I had tried that and that time he got me.”
It is not always easy to apply the rule correctly, because
A case which perhaps goes as far as any Virginia case has gone in excluding declarations of this character is Blue Ridge Light Co. v. Price, 108 Va. 652, 62 S. E. 938, wherein this court held that the statements of a motorman made just after the accident to the plaintiff, Miss Price, were not admissible. There was very little discussion of the res gestae rule in that case, the opinion being directed mainly to the proposition that the. motorman could not bind the defendant company on the score of agency. We have no difficulty in reaching the same conclusion in this case under the agency rule, and so far as the res gestae doctrine is involved we are of opinion that the case in'judgment is fairly distinguishable in its facts and circumstances from the case cited. . Miss Price who seems to have been knocked down by a car which she was attempting to board, had gotten up after the accident and had gone into the car, and at least an appreciable time had elapsed between the accident and the conversation which was excluded. Moreover the statement of the motorman in that case was dissimilar in its character and in its general setting from the excited declarations of the motorman in the case at bar.
Another case cited for the defendant is Vicksburg & Meridian R. C. v. O’Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299. The opinion in that case, by Mr. Justice Harlan, shows that the statement of the engineer which was held inadmissible was made from ten to thirty minutes after the accident; and even in that case four members of the court—Chief Justice Waite, and Justices Miller, Field and
The general nature of the res gestae rule is so well understood, and has been illustrated by so many adjudicated cases, that we do not feel warranted in prolonging the discussion of this branch of the case. The pertient authorities are comprehensively collected under the title “Res Gestae” in 11 Mich. Dig. 907, 931, and in the later volumes of that work, 14, 15, 16 and 17, under the same title.
For the reasons stated, we find no error in the admission of the evidence complained of in "the first and second assignments.
“Q. Have you any knowledge of Miss Deahl’s financial condition ?
“A. I certainly have.
“Q. What is it?
*150 “A. During the winter she did not have anything but what she got from me, the room rent, and when I was in I always boarded with them, and that was all she had, except once in a while her brother would give her a little something.”
This testimony was clearly illegal, and should have been excluded. There was no claim of punitive or exemplary damages involved in this case, and the general rule supported by the great weight of authority is that compensatory damages are not affected by the financial standing of either party to the action, and that it is error to admit evidence on that subject. Watson on Damages for Personal Injuries, sec. 620; Sutherland on Damages, (8d ed.), sec. 1254; 8 Am. & Eng. Enc. L. (2d ed.), p. 640; 13 Cyc., p. 197; 17 Corpus Juris, sec. 181, p. 872, and cases cited note 68; Penn. & Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; C. & O. Ry. Co. v. Ghee, 110 Va. 527, 533, 66 S. E. 826.
In the case of C. & O. Ry. Co. v. Ghee, supra, evidence was admitted by the trial court on behalf of the plaintiff to the effect that the deceased, for whose death damages were sought, owned ten acres of land at the time of his death and did not have any other property or estate; and the admission of this evidence was one of the errors for which the judgment in that case was reversed. Judge Card-well, delivering the opinion of the court, said: “We are of opinion that this evidence was irrelative and improper, and should have been excluded, since it was not material to any issue in the case. Such evidence was calculated to excite the sympathy of the jury, or, as stated by some of the courts, to stimulate their sympathy, and this sympathy was well calculated to influence the jury not only as to the quantum of damages they should allow, but in the determination of the question whether the case upon the evidence was for the plaintiff or for the defendant. The principle that such evidence is presumed to have wrongfully affected
It is contended on behalf of the defendant in error that in this case the foregoing evidence was admissible at least for the purpose of enabling the jury tc fix a proper sum for the mental suffering of Miss Deahl due to the contemplation of the financial distress which would necessarily come upon her by reason of her lack of funds and her alleged physical inability thereafter to make a living. No such distinction as this is recognized by the law in Virginia or elsewhere so far as we know, but even if there were such distinction, there was nothing at all in this case-to limit the jury’s consideration of the evidence in question to that particular purpose.
Under these circumstances; we. think it clear that the objection to the evidence in question was not waived.
In the case of Virginia Ry. & P. Co. v. Davidson, 119 Va. 313, 321, 89 S. E. 229, 230, a similar question of practice arose, and we %aid: “We do not' think the objection was waived. The bill of exceptions which sets forth the testimony of the witness, Walton, on this point, shows that at the very first offer of the plaintiff to prove the motorman’s general reputation the defendant specifically and earnestly objected on the ground that such evidence Vas immaterial and irrelevant, and that the defendant was only responsible to the plaintiff for the act of the motorman at the time of the action complained of, and that any general reputation he may have for either carelessness or carefulness was not properly admissible.’ The court heard argument of counsel upon the question and thezúadmitted the evidence. In this state of the record we have no hesitancy in holding that the subsequent cross-examination of the other witnesses on this subject, without formally repeating the objection, and the introduction of rebuttal evidence by the
This instruction was not sufficiently specific as a direction to disregard the illegal evidence which had been admitted, if, indeed, it even remotely had such evidence in view. The rule is well settled that the error in the admission of improper evidence may be cured-by a proper instruction to disregard it. Southern Ry. Co. v Simmons, 105 Va. 651, 661, 55 S. E. 459; Taylor v. Commonwealth, 122 Va. 886, 894, 94 S. E. 795. But, as appears from the authorities just cited, the withdrawal of the illegal, evidence from
For the error in admitting the testimony with reference to Miss Deahl’s financial condition, the case must be reversed and remanded for a new trial, and this fact makes it unnecessary to deal with the remaining assignments of error. They involve questions that are not likely to arise at the next trial, except the motion to set aside the verdict on the ground that the evidence was not sufficient to support it, and as to this it would not be proper, under our practice, for us .to express any opinion at this time.
Reversed.