Kelley v. Jordan Marsh Co.
| Decision Date | 07 January 1932 |
| Citation | 278 Mass. 101 |
| Parties | PATRICK H. KELLEY, administrator, v. JORDAN MARSH COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 9, 1931.
Present: RUGG, C.
J., WAIT SANDERSON, & FIELD, JJ.
Evidence Presumptions and burden of proof, Declaration of deceased persons, Hospital record. Practice, Civil, Findings by judge Exceptions, New Trial. Statute, Construction.
The burden of proving the preliminary facts necessary to the admission of the declarations of a deceased person under G.L.c. 233 Section 65, is upon the party offering such declarations in evidence.
The general rule is that findings by a trial judge concerning such preliminary facts must stand unless they involve some error of law or are unsupported by the evidence heard by the judge.
At the trial of an action by an administrator against the proprietor of a store for the conscious suffering and death of the plaintiff's intestate, no eyewitness testified as to the manner in which the injuries causing the intestate's death were received, and the plaintiff under G.L.c. 233,
Section 65, offered declarations by the intestate made before the commencement of the action. In the absence of the jury the trial judge heard evidence showing that the intestate was found severely injured on the sidewalk in front of the store, about twenty-five feet from its door.
Several witnesses, including police officers, testified that declarations of the intestate were to the effect that he was struck or pushed on the sidewalk by another pedestrian; other witnesses testified that his declarations were to the effect that the revolving door of the store, through which he was passing, was so rapidly turned by other persons that he was thrown out onto the sidewalk; and other witnesses testified that his declarations were to the effect that, upon his pushing on the door, it suddenly turned with great force, striking him and throwing him out onto the sidewalk. The defendant admitted that the plaintiff would present evidence to show that the door was defective a few hours before and three days after the accident. The judge found that the intestate's declarations were not made in good faith upon his own knowledge and excluded them. Held, that
(1) The judge was not required to find that the intestate, when discovered, had been moved from the place where he first fell;
(2) Even if the police officers failed to make a report of the accident as required by a rule of the police department, that circumstance did not require the judge to find that they had been guilty of despoiling, suppressing or concealing evidence, nor require him to disbelieve their testimony;
(3) The findings by the judge were warranted by the testimony and were untainted by error of law; and they must stand.
A judge, hearing a motion for a new trial of an action, cannot be required to pass upon requests for rulings as to matters which might have been raised at the trial, but in his discretion he may pass upon such requests.
At the hearing by the trial judge above described, the defendant, without objection, offered for consideration by the judge, and "to enable . . . [him] to make a finding required by" G.L.c. 233, Section 65, a hospital record under Section 79, containing a statement by the intestate as to the cause of the accident, which was supported by testimony by an attending physician that the intestate made such statement to him. Held, that
(1) It was apparent that the hospital record was offered solely in aid of the judge in determining how to perform the duty resting on him under
Section 65; and that it was not proffered nor admitted generally, nor as bearing on liability;
(2) There was no merit in a contention by the plaintiff that the statement in the hospital record as to the cause of the injury constituted original and primary evidence of the facts stated because it was a public record;
(3) The plaintiff's contention was not aided by the circumstances that the defendant introduced the record and did not seek to limit its probative force.
TORT for the conscious suffering and death of the plaintiff's intestate. Writ dated April 5, 1928.
The action was tried in the Superior Court before Sisk, J. Material evidence, including evidence heard by the judge in the absence of the jury on the question of the admissibility of declarations by the intestate, is stated in the opinion. The judge found that such declarations were not made in good faith upon the intestate's own knowledge, and excluded them; and ordered a verdict for the defendant. He subsequently denied a motion by the plaintiff for a new trial. The plaintiff alleged exceptions.
P.H. Kelley, for the plaintiff. E.J. Sullivan, (C.B. Barnes, Jr., with him,) for the defendant.
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 and 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 Section 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, Another witness stated that she said: 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: ...
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