Harriman v. Stowe

Decision Date31 July 1874
Citation57 Mo. 93
PartiesMAGGIE M. HARRIMAN, et al., Respondents, v. ASA M. STOWE, Appellant.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court.

Karnes & Ess, for Appellant.

I. In the case of Brownell vs. The Pacific R.R.Co.,(47 Mo.239) the declaration was made “immediately after the accident.” In this case the declarations were not made for several hours after, and there are “no connecting circumstances” of any kind whatever. We understand the law to be, that the res gestæ are first, the statement of the cause of the injury, made by the party almost contemporaneously with its occurrence. Second, those relating to the consequences or results of the injury, and which may be made at any time while such consequences exist. (Ins. Co. vs. Mosely, 8 Wall. [U. S.], 397; King vs. Foster, 6 Car. & P., 325; Thompson vs. Trevanion Skin., 402; Hanover R. R. Co. vs. Coyle, 55 Penn. St. 402.)

II. An action for negligence cannot be maintained against an agent, when the negligence consists in the omission of a duty imposed. (Henshaw vs. Noble, 7 Ohio St., 226; Colvin vs. Holbrook, 2 Comst., 126; Comeron vs. Reynolds, 1 Cowp., 406; Denny vs. Manhattan Co., 2 Denio, 115; Montgomery Co. Bank vs. Albany City Bank, 3 Selden, 464.) There was no privity between appellant and respondents, and for a neglect of duty he was only answerable to his employer. The maxim in such cases is respondeat superior. (Black Stock vs. New York & Erie R. R. Co., 20 N. Y., 51; Sto. Ag., § 309.)

Johnson & Botsford, for Respondents.

I. The testimony of Mrs. Harriman was erroneously excluded, (Tingley vs. Cowgill, 48 Mo., 291; Fugate vs. Pierce, 49 Mo., 441,) but this was done at the instance of defendant.

II. It could not have been more than three hours, and may have been but a few minutes, from the time she was injured, to the time when she made the statement complained of, to her physician. The statements thus made as to the cause of her injuries, were clearly a part of the res gestæ. (Brownell vs. Pacific R. R., 47 Mo., 239; State vs. Sloan, 46 Mo., 604; Ins. Co. vs. Mosely, 8 Wall., 397; Comm. vs. McPike, 3 Cush., 181; Comfort vs. The People, 54 Ill., 404.)

III. For an act of negligence producing an injury to a third party, both the principal and agent are liable, and may be sued either jointly or severally. (Wright vs. Wilcox, 19 Wend., 343; Montfort vs. Hughes, 3 D. Smith, 591; Snyder vs. Moore, 8 Barb., 358; Hewitt vs. Swift, 10 Am. Law Reg. 505; Phelps vs. Wait, 30 N. Y., 78; Witte vs. Hague, 2 Dowl. & Ryl., 33; Shearm. & Redf., Neg., § 112.)

WAGNER, Judge, delivered the opinion of the court.

The plaintiff, a married woman, in conjunction with her husband, brought this action for damages against the defendant for injuries sustained by her in falling through a hatchway which, it was alleged, was constructed by defendant, and by him negligently, carelessly and wrongfully left insecure and unprotected.

The answer denied the allegation of negligence, and as a further defense, set up that the house where the hatchway was built was the property of defendant's wife, and that defendant in doing the work was acting as her agent. There was a replication as to negligence and carelessness, but it was admitted that the property belonged to defendant's wife.

The verdict and judgment were for plaintiff, and defendant appealed. Upon the trial, the plaintiff, Mrs. Harriman, was offered as a witness and excluded by the court. As she was the substantial party in the case under the statute, she was a competent witness, and the ruling of the court was erroneous. (Tingley vs. Cowgill, 48 Mo., 291; Fugate vs. Pierce, 49 Mo., 441.) But the plaintiff is not here as a complainant, and if the judgment is affirmed the error does not injure her. On the trial, E. W. Shauffler was sworn as a witness for the plaintiff, and stated that he was a practicing physician, and as such attended on the plaintiff. The defendant objected to his giving any testimony because under the statute he was incompetent. This objection was overruled.

The witness was then asked to state in what condition he found the plaintiff when he was called in. This question was objected to by the defendant for the same reason as above given. The court sustained the objection, but permitted the witness to answer under the following restriction: “In answering the question you will not reveal any information you may have received from the plaintiff while attending her in your professional character, which information was necessary to enable you to prescribe for her as a patient in your capacity as physician or surgeon.” The witness then gave testimony tending to show that plaintiff was injured about noon, what her injuries were, that he was her physician before that time and that he was called to see her between one and four o'clock of that day. At the same time she stated to him that the trap-door in the kitchen had been left in an insecure condition, and that she stepped on it and fell through.

The statute says that a “physician or surgeon” shall be incompetent to testify, “concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician or do any act for him as a surgeon.” (2 Wagn. Stat., p. 1374, § 8.) As the court restricted the witness from giving any information forbidden by the statute, the only inquiry is, whether the evidence was admissible on any other principle. The general rule is, that evidence in order to become a part of the res gestæ should consist of declarations made contemporaneously, or nearly so, with the main event by which it is alleged that the principle transaction occurred. (Brownell vs. Pacific R. R. Co., 47 Mo., 239.)

But in the Insurance Co. vs. Mosely (8 Wall., 397) where the question was carefully and ably considered, it was declared that though generally the declarations must be contemporaneous with the event, yet where there are any connecting circumstances they may, even when made some time afterward, form a part of the whole res gestæ.

So in the Commonwealth vs. McPike, (3 Cush., 181) the indictment was for manslaughter, the defendant being charged with killing his wife.

It appeared that the deceased ran up stairs from her own room in the night, bleeding and crying “murder! Another woman, into whose room she was admitted, went at her request for a physician. A third person, who heard her cries, went for a watchman, and on his return proceeded to the room where she was. He found her on the floor bleeding. She said the defendant had stabbed her. The defendant's counsel objected to the admission of this declaration in evidence. The objection was overruled. The court decided that the evidence was properly admitted. It was said that it was of the nature of res gestæ. It will be observed that the declarations were not contemporaneous, but that considerable time must have elapsed between the time when the act was committed and that when the declarations were made; but the screams of the injured woman, her running into another room, her being found bleeding upon the return of the person who went for the watchman, all formed connecting links and rendered the declarations equally as satisfactory as if they had been made at the time the wounds were given. In the present case the witness came within a short time after the plaintiff received the injuries. He found her suffering, and she told him how she was hurt, namely, by falling through the trap door.

The accident and the declarations formed connecting circumstances, and in the ordinary affairs of life no one would doubt the truth of these declarations or hesitate to credit them as evidence. I can perceive no valid objection to their admissibility.

The instructions given by the court submitted the case with unquestionable fairness. For the defendant the court declared the law as follows:

First. Before the jury can find for the plaintiffs it devolves on the plaintiffs to prove that the defendant constructed the trap-door and hatchway mentioned in plaintiffs' petition, carelessly, negligently and unskillfully, or so left it; and that Maggie M. Harriman, the plaintiff, fell through the trap-door and hatch way, and that such falling was occasioned by the careless, negligent and unskillful construction of said trap-door and hatch way by the defendant, or by so leaving it.

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