American Ry. Express Co. v. Rowe, 1939.
| Decision Date | 17 August 1926 |
| Docket Number | No. 1939.,1939. |
| Citation | 14 F.2d 269 |
| Parties | AMERICAN RY. EXPRESS CO. v. ROWE et al. |
| Court | U.S. Court of Appeals — First Circuit |
Austin M. Pinkham, of Boston, Mass., for plaintiff in error.
John H. Casey, of Boston, Mass. (Ernest Foss, of Newburyport, Mass., on the brief), for defendants in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
This is an action of tort, brought by the executors of the estate of George Rowe, late of Seabrook, N. H. The declaration contains two counts; one to recover damages for conscious suffering and pain, and the other for the death of their testator, alleged to have been caused by the negligence of the defendant in operating a baggage truck on the platform of a railroad station in Newburyport, Mass., on October 27, 1923.
The deceased was 92 years of age, and by reason of collision with the truck sustained a fracture of one of his thighs. He was taken to a hospital in Newburyport, and later to his home in New Hampshire, where he died about 3 weeks later.
No living witness saw the truck strike the deceased. The deceased was visited at the hospital, 3 or 4 days after the accident, by an attorney employed by his son, who was afterwards appointed one of the executors, and in response to questions of the attorney gave answers which covered what he knew in regard to how the accident took place. This statement was not introduced in evidence, but the lawyer who visited the deceased at the hospital was permitted, over the objection of the defendant, to testify, after refreshing his recollection from the written statement which had been prepared and signed by the deceased, as to questions asked and the answers given.
If this evidence was competent, we think the judgment below must be affirmed, for from all the evidence the jury would be warranted in finding: That the plaintiff's intestate, a man 92 years of age, on the afternoon in question, was at the Boston & Maine station in Newburyport, Mass., for the purpose of taking a train for his home in Seabrook, N. H.; that shortly before the arrival of his train he left the men's waiting room by the door leading to the platform, and turned towards the right, going in a northeasterly direction, with the view of entering the smoking car when the train arrived; that after proceeding a short distance on the platform, and when within 2 or 3 feet of the place occupied by the newspaper stand in the summer time, he was struck in the back by the defendant's truck, knocked down, and received the injuries complained of; that at the time he came out of the station he did not observe the truck, and knew nothing about its approach until he was struck and knocked down; that the truck was some 9 feet long, 5 feet wide, and weighed 500 pounds, and at the time was being drawn by an express messenger, who was at its front end, having hold of the tongue or handle with his left hand, steering the truck, and having hold of the truck with his right hand, near the right corner, pulling it; that the truck had been taken from the express office at the southwesterly or Boston end of the station, and drawn northeasterly towards the Portsmouth or Seabrook end of the station, past the ladies' entrance, the ticket office, and the gentlemen's entrance; that the ticket office portion of the station extended out into the platform some 5 feet or more beyond the vestibules to the gentlemen's and ladies' entrances; that the messenger, in his northeasterly course from the express office, had proceeded with the truck at a distance of some 4 feet from the station building, swerving out as he passed the ticket office, and swerving in again as he passed the gentlemen's entrance; that as he passed the gentlemen's entrance he gave no heed as to whether people were going in or out there, but did observe, as he passed the ticket office and the gentlemen's entrance, people standing opposite thereto and midway of the platform near posts that were about 15 feet out from the entrance, and which supported the shed or canopy of the station; that he at no time observed the deceased, though he could, had he looked; and that the accident was due to his failure to exercise due care in this particular.
The crucial question is whether, under General Laws of Massachusetts, c. 233, § 65, the declarations made by the deceased in answer to the questions of the attorney were admissible in evidence. Section 65 is as follows:
"A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant."
The Massachusetts statute is an extension of the exceptions to the anti-hearsay rule. Brooks v. Holden, 175 Mass. 137, 140, 55 N. E. 802; Hall v. Reinherz, 192 Mass. 52, 77 N. E. 880.
We hold that the evidence was admissible under R. S. § 721 (Comp. St. 1916 § 1538):
"The laws of the several States, except where the Constitution, treaties, or statutes of the United States oherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."
This section originated in section 34 of the Judiciary Act of 1789 (1 Stat. 92). It has been uniformly construed to cover state statutes changing the rules of evidence, except when thus direct conflict with a federal statute would result.
A case exactly in point is Conn. M. L. Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708, in which it was held that the provision in the New York Civil Code excluding evidence of a doctor, obtained in a professional capacity, was binding on the courts of the United States sitting within that state in trials at common law, under R. S. § 721, that the laws of the several states, except where the Constitution, treaties, and statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States. In the opinion Mr. Justice Harlan says, citing R. S. § 721:
"This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the states in which such courts are held" — citing Potter v. National Bank, 102 U. S. 163, 26 L. Ed. 111; Vance v. Campbell, 1 Black, 427, 17 L. Ed. 168; Wright v. Bales, 2 Black, 535, 17 L. Ed. 264; McNiel v. Holbrook, 12 Pet. 84, 9 L. Ed. 1009; Sims v. Hundley, 6 How. 1, 12 L. Ed. 319. (Italics supplied.)
The exceptions to the rule also illustrate the proper application of the rule.
In Whitford v. Clark County, 119 U. S. 522, 7 S. Ct. 306, 30 L. Ed. 500, a deposition was admitted, although the witness was actually in court, contrary to the provision of R. S. § 865. This was held wrong, the court saying (page 525 7 S. Ct. 308):
"When the statutes of the United States make special provisions as to the competency or admissibility of testimony, they must be followed in the courts of the United States, and not the laws or the practice of the state in which the court is held when they are different."
Ex parte Fisk, 113 U. S. 713, 5 S. Ct. 724, 28 L. Ed. 1117, relied upon by the express company, was habeas corpus to release Fisk, who had been committed for contempt for failure to give his deposition before trial under the New York Code, which authorized the taking of deposition in a manner inconsistent with the deposition provisions of the Federal Code. Fisk was ordered set free. But Justice Miller in his opinion says, referring to R. S. § 720:
All that was really decided in the Fisk Case was that the New York statutory provisions as to depositions could not be substituted for the federal statutory provisions as to depositions. The general rule still obtains that, unless there be conflict with a federal statute, the state rule as to evidence prevails.
In Potter v. National Bank, 102 U. S. 163, 26 L. Ed. 111, R. S. § 858, was applied in a federal court sitting in Illinois, although the Illinois statute made the testimony of the executor incompetent. Section 858 provides (page 163):
But on page 165, the court (Harlan, J.) refers to R. S. § 721, as applicable, except where there is an express contrary...
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Schell v. Ford Motor Company
...may testify as to what the intestate had told him as to the latter's state of mind when signing the waiver. See American Railway Express Co. v. Rowe, 1 Cir., 1926, 14 F.2d 269, certiorari denied 1927, 273 U.S. 743, 47 S.Ct. 336, 71 L.Ed. 869. Of course, the court must make the required find......