Firkins v. Chi. Great W. Ry. Co.

• Decision Date: 06 May 1895
• Citation: 63 N.W. 172,61 Minn. 31
• Parties: FIRKINS v. CHICAGO GREAT WESTERN RY. CO.
• Court: Minnesota Supreme Court

61 Minn. 31

63 N.W. 172

FIRKINS

v.CHICAGO GREAT WESTERN RY. CO.

Supreme Court of Minnesota.

May 6, 1895.

(Syllabus by the Court.)

1. Whenever the bodily or mental feelings of a person are material to be proved, the usual expressions of such feelings are original and competent evidence. Such expressions are regarded as verbal acts. But such evidence must not be extended beyond the necessity upon which it is founded. It must be confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present existing pain or malady.

2. On the trial of a personal injury case, a witness for plaintiff testified that in a hospital car, several hours after the accident, he asked the latter: “What is the matter? How badly are you hurt?” Against objection, the witness was allowed to state that plaintiff replied: “I can't tell, but I am pretty badly off.” Held error.

Appeal from district court, Hennepin county; Seagrave Smith, Judge.

Action by Otis W. Firkins against the Chicago Great Western Railway Company. There was a verdict for plaintiff, and from an order denying a new trial defendant appeals. Reversed.

J. F. McGee, for appellant.

Simpson & Lang, for respondent.

COLLINS, J.

On the trial of this action, which was brought to recover for injuries received by plaintiff in a railroad accident, the issues were principally over the extent of the injuries and the amount plaintiff was entitled to recover therefor. One of plaintiff's witnesses, not a physician, had visited him while he was in a hospital car, some three or four hours after the accident occurred, and had testified as to his appearance then, and that his head was bandaged. The witness then volunteered the statement that he asked plaintiff: “What is the matter? How bad are you hurt?” whereupon defendant's counsel objected to the giving in evidence of plaintiff's answer. The objection was overruled, and the answer admitted, which was: “I can't tell, but I am pretty badly off.” A motion to strike out this question and answer was denied, and the rulings whereby this evidence was allowed to go to the jury are questioned by the assignments of error. We are of the opinion that the rulings were erroneous.

This court has held that statements by a sick or injured person made to his medical attendant in relation to his present condition, suffering, or symptoms may be given in evidence by such attendant. It was said that the evidence of such statements or declarations is received from necessity, because it is the only way in which the bodily condition of a patient could in many cases be ascertained. The rule laid down in 1 Greenl. Ev. § 102, was cited, and it was added that “the rule is to be carefully applied, and not unduly extended.” Johnson v. Railway Co., 47 Minn. 430, 50 N. W. 473. And there is an abundance of authority for the proposition that evidence of this nature is admissible, under some circumstances, coming from the lips of a witness who is not a physician or surgeon, although it is said that it will have greater weight if the statements or declarations were made to and can be proved by a medical attendant. Speaking of this class of testimony, it was remarked in Reed v. Railway Co., 45 N. Y. 575, that these declarations have been received as original evidence, and when made to a medical attendant, that he might be enabled to minister to the patient, have been regarded as competent evidence, and entitled to weight; that there is good reason for this, but that in every other case the admission of testimony so exceptional and such a departure from the established rules of evidence must be referred to the necessities of the case and the inability of the party to give evidence of a higher and more satisfactory nature. And it was also said in Caldwell v. Murphy, 11 N. Y. 416, that: “It is one of the natural concomitants of illness and of physical...