Kelley v. Jordan Marsh Co.

• Decision Date: 08 January 1932
• Citation: 278 Mass. 101,179 N.E. 299
• Parties: KELLEY v. JORDAN MARSH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 101

179 N.E. 299

KELLEY

v.JORDAN MARSH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1932.

Exceptions from Superior Court, Suffolk County; Sisk, Judge.

Action by Patrick H. Kelley, administrator, against the Jordan Marsh Company. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

P. H. Kelley, of Boston, for plaintiff.

E. J. Sullivan and C. B. Barnes, Jr., both of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for the conscious suffering and death of the plaintiff's intestate alleged to have resulted from the negligence of the defendant. There was evidence tending to show that the intestate was found severely injured in the late afternoon of a December day on the sidewalk in front of the store of the defendant. The evidence as to the precise place on the sidewalk where she was first seen by any witness subsequent to her injury showed that she was perhaps twenty-five feet from the door of the defendant's store lying or sitting with her feet in the street on or near the curbing and near a police signal box. According to some evidence, she was being held in a sitting position by some person or by two persons. No eyewitness testified as to the manner in which the injury was received. The plaintiff at the trial depended on G. L. c. 233, § 65, whereby it is provided that a ‘declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.’ Several witnesses testified to declarations as to the cause of the injury made by the intestate shortly after the injury. One witness, a police officer, testified that she said ‘a man hit me and knocked me down.’ The plaintiff testified that she said ‘I got in the door [the revolving door of the store of the defendant] and put my left hand on the rail and pushed it a little way. * * * So seeing that I couldn't force it with my left hand * * * I * * * gave pressure against the side to make it turn and * * * as it went it made a peculiar noise and * * * the first thing I knew the back of the door came round and struck me on the hip and * * * I went through the door down over the stone steps and fell. * * * I was completely stunned but did not lose consciousness, I could neither think nor talk. Some passerby then picked me up but I found I could not stand up.’ Another witness stated that she said: ‘I went through the revolving door * * * and I went into the door and it was stopped. I couldn't seem to move it. I pushed it * * * and still it didn't yield to my hand and I pushed my body against it and it commenced to go a little but and * * * all of a sudden it went with terrific force and the back of the door came around and threw me on to the street.’ The doctor at the hospital testified that ‘she said she was leaving a department store through a revolving door when door was rapidly revolved by a crowd behind her and she was thrown to sidewalk and was unable to get up.’ A different witness testified that she said ‘that while going through the revolving door * * * another person was going out, pushed the door too fast for her, throwing her down a couple of steps to the sidewalk.’ Another witness, an employee of the defendant, testified that, after being brought into the store subsequent to the accident, she made a statement ‘about a man knocking her over.’ The police ambulance was summoned and as soon as practicable the intestate was taken to a hospital in the care of one or more police officers. One police officer testified: ‘I asked her what was the matter and she told me she was pushed by some man’; she did not say where she was when she was pushed; and another, that he ‘asked her what happened and she said she had been pushed by a man against the building.’ It appeared from the evidence of a sergeant of police that, although it was his duty under the rules of the police department, and perhaps that of the other police officers, to make a report concerning the accident, no report was made by him. No such report was made by any of three such officers who assisted the intestate after her injury prior to the arrival of the ambulance. A report was made by an officer who came with the ambulance and went in it to the hospital with the intestate. It is not necessary to narrate or further to summarize the testimony on which the finding of the judge was made. It was admitted by the defendant for the purposes of the trial that the intestate was in its store on the afternoon in question to the time of the accident; that she was injured and suffered and that her death resulted from the injury; that a witness to be called by the plaintiff would testify that about five hours before the accident to the intestate a woman passed through the revolving door of the defendant's store in question, and ‘that it then behaved in the same manner in which’ the plaintiff contended ‘that it behaved at the time of this accident and that she was thrown out to the sidewalk to the curbstone,’ and that proof would be presented by the plaintiff that three days after the accident to the intestate witnesses examined the door and found it defective so that its revolution was impeded.

The trial judge, after examination of notes as to testimony of each witness, said: ‘I was impressed with this proposition, there is no way of recondiling the stories told by the intestate. Now there are the police officers who appear to be disinterested witnesses, and of course if their story is true that the intestate said what they say she did immediately after the accident then the other story is not in accordance with the fact. * * * The other feature of the case that impressed me perhaps as much as anything else in the case is where did this happen. Did it happen immediately in front of that revolving door? There isn't any dispute on the evidence here but that where the intestate finally fell on the sidewalk there she remained until she was picked up and carried into the store. Now the evidence of these police officers placing her down by the police box and the distance between that police box and the southern side of that entrance to that store shows that either that she walked there or was carried there, on the evidence’ a woman of her age and weight with a broken hip ‘couldn't walk there and there is no pretence that she did, no evidence, nothing to indicate that she walked or left the place where she fell until she was carried into the store.’

Before declarations of a deceased person rightly can be admitted under G. L. c. 233, § 65, the trial judge must make a preliminary finding of the existence of the facts which alone render such declarations admissible. The burden of proving these precedent facts is upon the party who offers such declarations in evidence. Confessedly the declarations here offered in evidence were made before the commencement of the action. That underlying fact need not be further considered. Another of these essential facts was that the declarations were made in good faith. The judge must find this fact to exist or the declarations must be excluded. Carroll v. Boston Elevated Railway, 210 Mass. 500, 96 N. E. 1040;Horan v. Boston Elevated Railway, 237 Mass. 245, 247, 129 N. E. 355;Crowley v. O'Donnell, 238 Mass. 475, 131 N. E. 70. Declarations of a deceased person, to be admissible under the statute, must also relate to facts within the personal knowledge of the declarant. That is another fact to be proved to the reasonable satisfaction of the trial judge before such declaration can be admitted in evidence. This express requirement of the words of said section 65 has been emphasized in the decisions. Little v. Massachusetts Northeastern Street Railway, 223 Mass. 501, 112 N. E. 77;Eldridge v. Barton, 232 Mass. 183, 187, 122 N. E. 272;Warren v. Decoste, 269 Mass. 415, 419, 169 N. E. 505.

The general rule has been established that the findings of the trial judge touching the existence of these essential preliminary facts will not be reversed unless they are unjustifiable or involve some error of law. Slotofski v. Boston Elevated Railway, 215 Mass. 318, 102 N. E. 417;Ames v. New York, New Haven & Hartford Railroad, 221 Mass. 304, 108 N. E. 920;Bodfish v. Cross, 235 Mass. 428, 126 N. E. 655. Such findings commonly rest upon the observation of witnesses and a determination by the trial judge of their capacity to comprehend that which was originally heard and to report it with reliable accuracy, and upon his conclusion as to the knowledge of the declarant and all the factors bearing upon his understanding, honesty of purpose, and faculty of correctly stating the facts. In short, the action of the trial judge rests upon circumstances which cannot be reflected with reasonable precision upon the printed page. A finding of that nature ordinarily will stand as conclusive in an action at law if there is any evidence to support it. Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803. It can rarely be ruled as matter of law that the burden of proof has been sustained. McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 452, 117 N. E. 836. Even in equity, where the finding of the fact finding tribunal is not reversed unless plainly wrong, a finding like that here assailed will not commonly be reversed, even upon a full report of the evidence, by this court in the performance of its duty to examine the evidence and to decide the case according to its judgment, giving only due weight to the action of the trial tribunal. Berman v. Coakley, 257 Mass. 159, 153 N. E. 463.

The plaintiff has made a detailed analysis of all the testimony of the several witnesses and has presented an elaborate argument to the effect that the testimony of all the witnesses inconsistent with or contradictory to evidence supporting his contention to the effect that the...