Delaware, L. & W.R. Co. v. Roalefs

• Decision Date: 28 October 1895
• Docket Number: 9.
• Citation: 70 F. 21
• Parties: DELAWARE, L. & W.R. CO. v. ROALEFS.
• Court: U.S. Court of Appeals — Third Circuit

70 F. 21

DELAWARE, L. & W.R. CO. v. ROALEFS.

No. 9.

United States Court of Appeals, Third Circuit.

October 28, 1895

John W Griggs, for plaintiff in error.

Joseph Coult and James E. Howell, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and BUTLER, District Judge.

BUTLER District Judge.

The plaintiff sued to recover compensation for injuries sustained in an accident, while on the defendant's train. Liability was not denied, and the only contest was over the amount due. The plaintiff having called Dr. Hamilton (who had examined him professionally a year after the accident), asked him to state the plaintiff's declarations at the time respecting his condition and symptoms past and present together with the witness' opinion based on these declarations and his own personal observations. The defendant objecting, the court overruled the objection and noted an exception. The doctor proceeded to detail the declaration and his observations, and to state his opinion of the plaintiff's condition at the time, and the probable future consequences of his injuries. After the testimony had closed the defendant requested the court to charge:

'(1) That the opinion of Dr. Hamilton being based upon the statements of the plaintiff, in connection with a physical examination, it is to be disregarded by the jury, unless all the statements made to him by the plaintiff are proven to have been true.'

This request the court refused. The admission of the testimony and the refusal to charge as desired are assigned as error.

The declarations of a patient to his physician respecting his condition and symptoms at the time of seeking medical aid are admissible as evidence in his behalf, under a well-settled exception to the rule excluding 'hearsay.' (They do not belong to the class of declarations and expressions admissible as res gestae, and should not be, as they sometimes are, confounded with them.) The exception originally rested on the ground first, that as the common law forbade parties testifying, the facts involved could not be proved in any other way, and second, that the patient's interest in the physician's opinion precluded danger of falsehood. The modern practice of admitting parties as witnesses has removed the first of these grounds; but this is not considered a sufficient reason for excluding the testimony. Railroad Co. v. Urlin, 158 U.S. 271 (15 Sup.Ct. 840). To render it admissible, however, the plaintiff must establish the fact on which the exception rests-- that is that the declarations were made when seeking medical aid. Here this fact is not proved. It appears simply that the plaintiff called on the doctor a year after the accident, when his condition had much improved, made the declarations, and requested an opinion based upon them and a physical examination. We think the inference is irresistible that he did not call to consult the doctor with a view to medical aid; but to employ and qualify him as an expert, to assist in maintaining the pending suit. The time at which and circumstances under which, the call was made-- the fact that he was under the care of another competent physician, and that Dr. Hamilton, who has great reputation as a medical expert, was produced as such on the trial, and his testimony mainly relied upon in this respect-- forbids any other conclusion. It follows that the testimony should have been excluded. Barber v. Mirriam, 11 Allen, 322; Railroad Co....