Elmer v. Fessenden

• Decision Date: 26 November 1889
• Citation: 24 N.E. 208,151 Mass. 359
• Parties: ELMER v. FESSENDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 359

24 N.E. 208

ELMER

v.FESSENDEN.¹

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 26, 1889.

OPINION TEXT STARTS HEREExceptions from superior court, Franklin county; JAMES M. BARKER, Judge.

This is an action of tort by Samuel Elmer against George R. Fessenden. The declaration, as amended, and answer are made part of these exceptions. At the trial, which was before a jury, the plaintiff introduced evidence tending to show that he was, during 1887, a manufacturer of whip-snaps from silk thread, in Ashfield, which thread his employes there resident were compelled to manipulate, and that in the month of June, 1887, the defendant, who was a physician in that town, had circulated the report that he had sent some of the silk thread used in the manufacture to the state board of health for analysis, and received from that board a report that it contained arsenic in sufficient quantities to be dangerous to the employes using it in the way they did. The witness who testified to these facts had also testified that he was, and had been from March, 1887, the agent of the plaintiff who superintended this business, and he was permitted, on the assurance of the plaintiff's counsel that he expected to prove later that certain of the employes, for the loss of whose services damages were specified in the declaration, had stopped work by reason of the statement of the defendant to them, above referred to, relative to the report of the board of health, to testify that these employes stopped work on the 11th day of June, 1887, for some time. The plaintiff then, to prove the reason why they stopped work, asked the witness “whether they gave any reason for stopping work.” This question was excluded by the court. The plaintiff afterwards asked: “What, if anything, did they say as reason for stopping?” This question the court also excluded. Afterwards the plaintiff introduced as a witness Anna M. Brackett, of Ashfield, named in the declaration, who testified that she was, in June, 1887, an employe of the plaintiff in the manufacture of the whip-snaps, in Ashfield, and that in the first part of that month she stopped making as many whip-snaps as before because she heard there was poison in the silk. The plaintiff then asked the witness from whom she heard this, and she stated she could not remember. The plaintiff then further inquired: “What was the report which you heard in June, 1887, which caused you, as you have testified, to make a less number of whip-snaps?” This question the court excluded. The plaintiff also asked her: “From whom was the report stated to you to have come, if from any one?” This question the court also excluded. There was evidence tending to show that the question whether there was arsenic in the silk had been a matter of discussion among the employes and in the community in Ashfield since the preceding February, and that several of the employes had received medical advice that there was arsenic in it; but their work had not fallen off before June. In fact, there was no arsenic in the silk. The plaintiff having duly excepted to the several exclusions of evidence above set forth, and the jury having returned a verdict for the defendant, the plaintiff brings exceptions.

H. Winn, for plaintiff.

J.A. Aiken, for defendant.

HOLMES, J.

1. It was a part of the plaintiff's case that the cause of his workmen's leaving his employment was the defendant's false story. If, as may be assumed, the excluded testimony would have shown that the workmen, when they left, gave as their reason to the superintendent that the defendant had told them that the board of health reported arsenic in the silk, the evidence was admissible to show that their belief in the presence of poison was their reason in fact. Lund v. Tyngsborough, 9 Cush. 36, 41, 43; Aveson v. Kinnaird, 6 East, 188, 193; Hadley v. Carter, 8 N.H. 40, 43;U.S. v. Penn, 13 N.B.R. 464, 467. We cannot follow the ruling at nisi prius in Tilk v. Parsons, 2 Car. & P. 201, that the testimony of the persons concerned is the only evidence to prove their motives. We rather agree with Mr. Starkie, that such declarations, made with no apparent motive for misstatement, may be better evidence of the maker's state of mind at the time than the subsequent testimony of the same persons. Starkie, Ev. (10th Amer.Ed.) *89. As a rule, such declarations are not evidence of the past facts which they may recite. The cases in which they have been admitted to prove the cause of a wound or injury, when the declarations were made at the time or immediately after the event, if not exceptions to the general rule, at least mark the limit of admissibility. Com. v. Hackett, 2 Allen, 136, 140;Com. v. McPike, 3 Cush. 184;Insurance Co. v. Mosley, 8 Wall. 397. The excluded testimony was not competent to prove that the defendant did tell the workmen the story. As to that it was mere hearsay, and was not within the scope of the special reasons which led to the decisions last cited. Roosa v. Loan Co., 132 Mass. 439;Chapin v. Marlborough, 9 Gray, 244;Bacon v. Charlton, 7 Cush. 581, 586;Aveson v. Kinnaird, ubi supra; People v. Thornton, 74 Cal. 482, 486,16 Pac.Rep. 244. It is admitted, however, that there was independent testimony that the defendant spoke to the workmen, and therefore the...