Jones v. Village of Portland

• Decision Date: 21 December 1891
• Citation: 50 N.W. 731,88 Mich. 598
• Court: Michigan Supreme Court
• Parties: JONES v. PRESIDENT, ETC., OF VILLAGE OF PORTLAND.

50 N.W. 731

88 Mich. 598

JONES v. PRESIDENT, ETC., OF VILLAGE OF PORTLAND.

Supreme Court of Michigan

December 21, 1891

Error to circuit court, Ionia county; VERNON H. SMITH, Judge.

Action by Orissa M. Jones against the president and trustees of the village of Portland. Judgment for plaintiff. Defendant brings error. Reversed.

A. A. Ellis and W. H. Howard for appellant.

Davis & Nichols, for appellee.

CHAMPLIN C.J.

This action was brought to recover compensation in damages for a fall caused by a defective crosswalk in the village of Portland, which the village authorities neglected to keep in repair. The plaintiff recovered judgment, and the defendant brings the case here by writ of error.

The injury was received on July 20, 1888, about 9 o'clock in the evening. This was on Friday; and on the evening of Tuesday, which was the 24th, Dr. Grant and Dr. Logan, of Ionia, came to see her. She had not at that time employed them, but they were employed by her husband, who was a lawyer. He engaged these physicians for the purpose of prescribing for his wife, and for the purpose of preparing them as witnesses to testify in a suit which was to be brought to recover damages against the village. The latter purpose would seem to be the principal one. Both of them understood that to be the object when they took the case and first went to see Mrs. Jones. During the summer previous Mrs Jones had been ill, and she then had employed Dr. Alton and Dr. Hugg to attend her. Although she did not send for nor employ the Ionia physicians in the first place, she ratified what her husband had done, and submitted to an examination by and treatment from them. This suit was brought September 15, 1888, and some of these examinations were made before and some after suit brought. The physicians were allowed to testify to her complaints and to her statements of pain made during the examination made by them; also as to tenderness and pain in the region of her back, hip, and genital organs. They discovered a slight discoloration on the left hip, and a fullness at her knee, which were the only indications which they found of any ailments, and which, independently of her assertions that she had been injured, they would have attributed to rheumatism.

The questions presented by the assignments of errors upon this branch of the testimony are: First. Is it competent for a physician to testify to exclamations of pain made by a party who is being examined by such physician, when such party contemplates the bringing of a suit to recover for the injury which she claims to suffer, when such physician is employed with a view and for the purpose of giving testimony in such suit so to be brought? Second. Is it competent for such physician to testify to such exclamations and statements of the party upon examination made after suit is brought, and for the purpose of giving the same in evidence? The plaintiff claims that such testimony is admissible, under the following authorities: Hyatt v. Adams, 16 Mich. 180; Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Mich. 49; Mayo v. Wright, 63 Mich. 32, 29 N.W. 832. Hyatt v. Adams was an action on the case against a physician for malpractice in treating the plaintiff's wife, causing her death within four days. All there is in the opinion upon this subject is found in a single paragraph upon page 200, and reads as follows: "The court did not err in admitting the exclamations of pain and suffering uttered by the deceased, and her complaints as to the nature of her suffering during and after the operation, though some of them were in the absence of the defendant. This is the natural and ordinary mode in which physical pain and suffering are made known to others, and the only mode by which their nature and extent can be ascertained. Such exclamations and statements are therefore original evidence. But it was, of course, open to the defendant to show, or to raise an inference if he could, that they were feigned, or intended to deceive. They were clearly admissible as tending to show the malpractice of the defendant, though not for the purpose of aggravating the damages." It will be noticed that the admission of the evidence was confined to a single fact to be proved, and that was the malpractice of the defendant; and it was expressly stated that it was not admissible for the purpose of aggravating the damages. That case is not analogous to this. The exclamations of Mrs. Jones to her physicians, made four days after the accident happened, could in no manner tend to prove that she met with a fall upon a sidewalk through the negligence of defendant. It would not be competent testimony to prove the main fact in this way from statements of the party. The only bearing it could have legitimately would be to aggravate the damages, and the case cited is authority that it is not admissible for that purpose. Johnson v. McKee, 27 Mich. 471, was not a case of negligence, but of assault and battery Testimony was received showing the statements by plaintiff at various times concerning her pains and bodily suffering. These were objected to as hearsay statements, and as declarations in her own favor. It was held by the court that, "so far as they were not narrations of past as well as present suffering, it has been well settled that such statements of present feelings are facts which furnish the best, and often the only, evidence of such physical conditions as are not open to discovery by the sight or other senses of witnesses." The question was no further considered. Elliott v. Van Buren, supra, was an action for an assault and battery, and the court said: "The declarations of a sick person, made from time to time, concerning present sufferings and sensations, (not being relations of past occurrences,) are the usual means of evidence where third persons testify on the subject." Mayo v. Wright was an action brought against a physician for malpractice in setting a broken leg, in which the same principle was asserted and applied. None of these cases were actions for negligence, but the causes of action were the direct act and misfeasance of the defendant, and the testimony was admissible as bearing upon the wrongful act alleged. In each of them, also, the exclamations were at a time when motives to make testimony favorable to the party in a suit such party had brought or contemplated to bring were absent. In this case it must be borne in mind that the witnesses were employed with a view of a suit to be brought, so far as was connected with two at least of the examinations made by them, and after the suit was brought, as to the other testimony relating to her exclamations or statements of her pain and suffering made to them.

In Railroad Co. v. Huntley, 38 Mich. 544, this court had occasion to pass upon the competency of testimony of physicians employed as "a mere auxiliary to a lawsuit." Chief Justice CAMPBELL, in giving the opinion of the court, said: "It has been held several times by this court that statements of pain and of its locality were exceptions to the rule excluding hearsay evidence. These statements are admitted only upon the ground that they are the natural and ordinary accompaniments and expressions of suffering. It would be impossible in most cases to know of the existence or extent or character of pain without them. They are received, therefore, as acts, rather than declarations, and admitted from necessity. The rule which admits declarations of present suffering has never been extended so as to include declarations either of past suffering or of the causes in the past of such suffering, so as to make such statements proof of the facts. Declarations concerning the past are narratives, and not facts. Exclamations of suffering may be, and, if honest, are parts of the occurrence itself. It is difficult to lay down any very clear line of admission or exclusion where the exclamation refers to the feelings of the moment. But we think it would not be safe to receive such testimony in any case where it is not the natural and ordinary expression of pain, called out without purpose, or in the course of medical treatment. The unstudied expressions of daily life, or the statements on which a medical adviser is expected to act, and which, if feigned, he should have skill enough to subject to some test of truth, stand on a footing which removes them in general from suspicion. But we cannot think it safe to receive such statements which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment. The case had been relinquished long before, as requiring no further attendance. They were sent for merely to enable the plaintiff below to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were therefore made under a strong temptation to feign suffering if dishonest, and a hardly less strong tendency, if honest, to imagine or exaggerate it. The purpose of the examination removed the ordinary safeguards which furnish the only reason for receiving declarations which bear in a party's own favor. The general rule in regard to other classes of hearsay evidence and statements admitted upon the same principle is that they must have been made ante litem motam, which is interpreted to mean not merely before suit brought, but before the controversy exists upon the facts. Stockton v. Williams, Walk. Ch. 120, 1 Doug. (Mich.) 546, (citing the Berkeley Peerage Case, 4 Camp. 401; Richards v. Bassett, 10 Barn. & C. 657; Doe d. Tilman v. Tarver, Ryan & M. 141; Monkton v. Attorney General, 2 Russ. & M. 160; Whitelock v. Baker, 13 Ves. 514. The language of Lord...