Gardner v. Kellogg

Decision Date30 March 1877
Citation23 Minn. 463
CourtMinnesota Supreme Court

Doughty & Card, for appellant.

Brown & Stocker, and W. J. Hahn, for respondent.


In a criminal action against a party indicted for an assault of an indecent character upon a female, the rule is settled in this state that it is competent, when the party assaulted testifies as a witness to the assault, to prove, both by her and other witnesses, the fact that immediately thereafter she made complaint of the outrage upon her person to some confidential friend or relative. But such proof must be confined to the principal fact, and not extended to embrace any of the particulars of the transaction. State v. Shettleworth, 18 Minn. 208. In this case the question is presented whether this rule also obtains in a civil action, brought by or on behalf of the injured party against the wrong-doer, to recover damages occasioned by the wrongful act.

The assaulted party in this case was a child ten years of age, who was living at the time with her parents. The place of the alleged assault was at a hotel, at Lake City, some five blocks distant from her home. On the trial the child was examined as a witness on behalf of the plaintiff, and after testifying in chief to the circumstances of the assault — that defendant, among other things, pinched her on the cheeks so that they were red, and that she felt the effects of it, and was crying upon reaching home, whither she went directly after the transaction — the question was put to her whether she then told her mother of it. This was objected to by defendant as incompetent. The court overruled the objection, to which an exception was taken, and witness answered, "I went and told mamma of it." After her cross-examination, directed in part to the impeachment of her testimony, her mother was sworn, as a witness for plaintiff, for the purpose of showing that her child was crying when she reached home, her personal appearance and condition at the time, and also the fact that she then stated to her the cause. To this the defendant also objected as incompetent, and the court ruled that such her personal appearance might be shown, and that it would allow plaintiff to prove by the witness that she (the child) did give a statement of the cause, but would not allow witness to say what was said.

The clear effect of this ruling was to allow proof to the sole extent of showing the personal condition and appearance of the assaulted party on reaching home, and that she then disclosed to her mother the naked fact of the assault. If the defendant had been on trial, under an indictment for the commission or attempt to commit the offence involved by the act charged to have been done in this case, there can be no question that the evidence would have been admissible under the rule laid down in State v. Shettleworth. Whatever may be the reason for the rule as applied to criminal cases — whether it is that statements of this character as to the cause and immediate consequences of the injury, made by the injured party so soon after the injury, and while still under the influence of the smart and suffering occasioned by it, constitute a part of the res gestæ, as was held in Thompson v. Trevannion, Skinner, 402, approved in Aveson v Lord Kinnaird, 6 East, 188, and in Insurance Co. v. Mosley, 8 Wall. 397; or whether it is that silence under such circumstances is so contrary to human experience, and to the natural and ordinary conduct of a woman suffering under such a wrong, as to raise, if not explained, an unfavorable presumption affecting the credibility of her testimony as a witness, and hence, as is suggested by Woodruff, J., in Baccio v. People, 41 N. Y. 265, 268, affirmative proof is admissible to repel the inference — it would seem quite clear that the rule has for its support a foundation equally as firm and reasonable in civil as in criminal actions. If it is a sound and safe rule to observe in the determination of a controverted fact which is to affect the liberty and dearest personal rights of the citizen, it is difficult to perceive why it ought not to be followed in the ascertainment of the same fact when his pecuniary interests alone...

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56 cases
  • Cook v. Connolly
    • United States
    • Minnesota Court of Appeals
    • August 14, 1984 to enable the parent to bring the action for the benefit of the child. Whatever is recovered belongs to the child. See Gardner v. Kellogg, 23 Minn. 463, 467 (1877); Buechner v. Columbia Shoe Co., 60 Minn. 477, 62 N.W. 817 (1895); Lathrop v. Schutte, 61 Minn. 196, 197, 63 N.W. 493, 494 In......
  • Glover v. Callahan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 27, 1937
    ...soon after the assault, is not applicable in a civil action brought to recover damages for such an assault. It was said in Gardner v. Kellogg, 23 Minn. 463, 466, which was an action to recover damages for an indecent assault, that the rule in question ‘has for its support a foundation equal......
  • Bamka v. Chicago, St. Paul, Minneapolis & Omaha Railroad Company
    • United States
    • Minnesota Supreme Court
    • July 3, 1895
    ...child. Damages sustained by a parent by reason of the injuries, such as loss of services, are not recoverable in such an action. Gardner v. Kellogg, 23 Minn. 463. The action is solely for the benefit of the child, and the plaintiff parent has no interest in the amount recovered. Such plaint......
  • State v. Gress
    • United States
    • Minnesota Supreme Court
    • August 2, 1957
    ...extent to which testimony may be received to affect credibility thereof upon collateral matters is largely for the trial court. Gardner v. Kellogg, 23 Minn. 463; State v. Quirk, 101 Minn. 334, 112 N.W. 409; State v. Phillips, 105 Minn. 375, 117 N.W. 508; 20 Dunnell, Dig. (3 ed.) § 10348; St......
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