Chi., R. I. & P. R. Co. v. Jackson

• Decision Date: 09 January 1917
• Docket Number: Case Number: 7219
• Citation: 1917 OK 45,162 P. 823,63 Okla. 32
• Parties: CHICAGO, R. I. & P. R. CO. v. JACKSON.
• Court: Oklahoma Supreme Court

1917 OK 45

162 P. 823

63 Okla. 32

CHICAGO, R. I. & P. R. CO. v. JACKSON.

Case Number: 7219

Supreme Court of Oklahoma

Decided: January 9, 1917

Syllabus

¶0 1. Depositions-- Filing--Time. By section 5088, Rev. Laws 1910, it is provided that depositions intended to be read in evidence on the trial must be filed at least one day before the day of trial.

2. Depositions -- Exceptions -- Statement of Fees. Exceptions to a deposition based on the fact that there is inclosed with the deposition a letter of the attorney procuring the taking of the deposition, containing a statement of the fees due the notary public, witnesses, and stenographer, incurredin taking the deposition, are without merit.

3. Appeal and Error--Depositions--Order of Trial Court-- Objection to Depositions--Conflicting Evidence. An order of the trial court overruling objections that depositions were not opened or published as required by law, heard and determined upon conflicting evidence, Will not be disturbed on appeal. (a) Evidence considered, and held, that the trial court did not err in overruling the motion to quash the second Harwell deposition.

4. Evidence--Statements to Physician--Symptoms. A physician in giving evidence as an expert may testify to a statement made him by the patient in relation to his condition, symptoms, sensations, and feelings, both past and present, when such statements were received and were necessary to an examination, with a view to his treatment, and when made the basis, in part at least, of the physician''s opinion; but such testimony cannot be considered as independent evidence of the facts stated, except in cases where the same is competent as forming a part of the res gestae.

5. Same--Narrative--Res Gestae. Facts not required for a satisfactory diagnosis such as the cause of an injury, the means or manner by which it was inflicted, or which attempt to fix the responsibility for its occurrence, are regarded as a narrative of the incidents of a past transaction, and are accordingly rejected, unless made so near in point of time as to constitute a part of the res gestae.

6. Evidence--Expert Testimony of Physician -- Physical Examination. Expert testimony of a physician, based on a physical examination of the patient, after action instituted by him to recover damages for an alleged personal injury, though made partly for the purpose of enabling the physician to testify as a witness, is not, on that account alone, incompetent, though constituting a fact which may materially affect his credibility.

7. Master and Servant--Action for Injuries-- Evidence. In an action for damages for personal injuries, founded partly on alleged negligence arising out of a failure to furnish appliances for the elevation of handcars at a place of work in the repair shops of defendant company, it is error, calling for a reversal of the judgment, for the court, over objection, to admit evidence that the general foreman, shortly after the injury, ordered the building of a crane for elevating the cars in the future; such evidence being incompetent as not tending to prove prior negligence.

8. Evidenee--"Res Gestae"--Admissibility. Statements are not admissible as forming a part of the res gestae, when they merely concern acts which would not be admissible in evidence without such declarations. To be admissible the statements must be material and relevant. In other words, the so-called res gestae fact must itself be receivable in evidence, as one material to the issues Joined.

9. Same. A fact wholly irrelevant to the cause cannot be the means of introducing in evidence, as a part of the res gestae, a declaration which of itself is entirely incompetent, because mere hearsay.

10. Same--Declarations of Agent. The admissions or declarations of an agent are admissible as evidence against his principal only when made in the discharge of his duties as agent, and so closely connected with the main transaction in issue as to constitute a part of the res gestae. Such admissions or declarations must be in respect to a fact competent to be established under the issues raised.

C. O. Blake, R. J. Roberts, W. H. Moore, J. G. Gamble, and K. W. Shartel, for plaintiff in error.

H. H. Smith, for defendant in error.

SHARP, J,

¶1 The first error assigned involves the action of the trial court in overruling defendant''s motion to quash the depositions of Drs. Rice and Ellis, taken in the month of November, 1911, because it is said: (1) The depositions were not mailed to the clerk of the court until March 5, 1912; (2) they were not transmitted by the officer taking them; (3) the certificate of the officer does not show the date on which taken; (4) said depositions were not opened or published as provided by statute; (5) the depositions were mutilated by plaintiff, in that the testimony of one Harwell was abstracted therefrom. In answer to the first contention, it is sufficient to say that the statute only requires that a deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial. Rev. Laws 1910, sec. 5088. The second contention appears to be predicated upon the fact that inclosed with the depositions was a letter addressed to the clerk of the district court, requesting him to file the depositions, and attached to which was a statement of fees due the notary, witnesses, and stenographer, incurred in the taking of the depositions The evidence heard by the trial court on motion to quash tends to show that the letter was not signed by plaintiff''s attorney, but by the stenographer who took the depositions. Even though authorized by plaintiff''s attorney, containing as it does a mere request that the clerk file the depositions with a statement of fees attached, it affords no ground whatever for quashing the depositions. The depositions as incorporated in the record do not contain the certificate of the notary; hence the third objection cannot be considered. It may be Observed, however, that the depositions were taken by agreement of counsel, and that the defendant company was represented by its attorney, who cross-examined both witnesses. Objection that the certificate of the notary does not contain the day of the month on which the depositions were taken, where opposing counsel appeared and took part in the examination of the witnesses produced, is wholly without merit. The objection that the depositions were not opened or published as the law requires was decided by the trial court in favor of the plaintiff below, upon conflicting evidence. It seems that C. R. Hunt, a member of the Wilburton bar, opened the envelope containing the depositions, at the request of the attorney representing the plaintiff. Hunt testified that he indorsed the publication of the depositions on the envelope containing them, in the presence of the clerk, and that he thereupon withdrew the Harwell deposition, and mailed it to plaintiff''s attorney at Shawnee. Section 5082, Rev. Laws 1910, provides that depositions shall remain under seal until opened by the clerk by order of the court, or at the request of a party to the action or proceeding, or his attorney. As Mr. Hunt represented Mr. Smith, plaintiff''s attorney, in the publication of the depositions, and as there was evidence before the trial court tending to show that this was done with the knowledge of and in the presence and at the direction of the clerk, who it appears was busy at the time, the court''s action upon the fourth objection will not be reversed, no claim being made that the depositions of Rice or Ellis were in any way altered or changed. The fifth objection, which affected only the original deposition of the witness Hatwell, was sustained by the court, though at the time said original deposition was not on file; neither had it been since it was withdrawn by attorney Hunt on September 25, 1914. The second assignment of error involves the action of the trial court in overruling a motion to quash the second deposition of Harwell, taken in the month of September, 1914, upon the ground that Harwell''s original deposition, of November, 1911, and referred to in the second deposition as an exhibit thereto, was not on file. This was the deposition that was sent by Hunt to Smith at Shawnee, and which was present and referred to by .the attorney for the defendant company in his cross-examination of Harwell, and who was asked if in his original deposition he had not given a certain answer to a question put to him by plaintiff''s attorney. His reply was that he had, but that it had been taken down wrong. A second question being propounded to him, the inquiry was made if he had not given a certain answer to it. He replied that he had, but offered an explanation as to the kind of cars referred to. At the time the second deposition was read in evidence, counsel for defendant had in his possession a copy of the Harwell deposition given in 1911, furnished by the stenographer who took it, and which counsel admitted, in the hearing upon the motion, he used in Harwell''s cross-examination. No claim is made, except by possible inferences, that the questions and answers in the original or lost deposition differed from those in the defendant''s possession at the trial. We cannot see wherein the defendant was prejudiced in any respect by the loss of the deposition, and are disposed to view the objection as purely technical. The third assignment of error involves the admission in evidence of a part of the testimony of Drs. Rice and Ellis, in respect to certain expert testimony given by them. The alleged injuries sustained by the intestate occurred October 19, 1910. November 14th thereafter, Dr. Ellis, Jackson''s family physician, was called in attendance. In testifying as to the former''s physical condition, Dr. Ellis stated that his opinion was based both upon a physical examination of his patient, symptoms manifested, and from the history of the case given him by said patient, and that the...