Keough v. Boston Elevated Ry. Co.
| Decision Date | 14 January 1918 |
| Citation | 118 N.E. 524,229 Mass. 275 |
| Parties | KEOUGH v. BOSTON ELEVATED RY. CO. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.
Separate actions by Mary Keough and by Michael Keough against the Boston Elevated Railway Company. There were verdicts for plaintiffs, and defendant excepts. Exceptions sustained.
Hurlburt, Jones & Hall, of Boston, for plaintiffs.
E. P. Saltonstall and C. W. Blood, both of Boston, for defendant.
These are actions of tort to recover for personal injuries alleged to have been received by the plaintiffs, on April 30, 1915, while boarding an outbound car at the Public Library stop, Copley Square, Boston. Michael Keough also seeks to recover the expenses consequent to the injuries received by his wife, the plaintiff, Mary A. Keough.
Mrs. Keough was treated by Dr. Hastings twice each day until May 10, 1915. She then went on a vacation with her husband and on her return Dr. Hastings treated her three or four times a week. He died early in June, 1915. On May 5 of the same year, she testified in the municipal court on a criminal complaint against the conductor of the car.
She was asked if she had a talk with Dr. Hastings about ‘that trip’ (to Washington), and answered ‘Yes.’ This question was then put:
‘Will you state what you told the doctor about your condition and what he advised you to do, the day after you had been to court?’
Subject to the defendant's exception, she replied:
‘I told him I felt sorry this had happened, because Mr. Keough was to go on his vacation and if I had to stay at home, why it would spoil his vacation, because he did not have it later.’
This evidence was clearly inadmissible. Her statement that her husband's vacation would be interfered with could not be received in evidence. The fact that these statements were made to her physician now deceased, does not make them admissible. They were her declarations made to him and not his declarations, and it is the declaration of the deceased person which the statute admits. R. L. c. 175, § 66. Such a narration could not be testified to by her, even if the doctor were alive, under the rule permitting an attending physician to testify to the condition, symptoms, feelings and sensations, as stated by the patient; nor could the physician testify to such a statement. Roosa v. Boston Loan Co., 132 Mass. 439. As this evidence may have been harmful to the defendant this exception must be sustained.
Mrs. Keough was also asked:
‘What did the doctor advise you to do?’
The defendant excepting, she replied:
‘He ...
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Tafralian v. Metropolitan Life Ins. Co.
...... opinion it is not admissible." It was held in Keough. v. Boston Elevated Railway, 229 Mass. 275, that it was. error to admit the statement of a ......
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Tafralian v. Metro. Life Ins. Co.
...has recognized that where the declaration admittedly is one of opinion it is not admissible.' It was held in Keough v. Boston Elevated Railway, 229 Mass. 275, 118 N.E. 524, that it was error to admit the statement of a deceased physician concerning his advice to a patient, inasmuch as this ......
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...and therefore inadmissible. See Little v. Massachusetts Northeastern St. Ry., 223 Mass. 501, 504, 112 N.E. 77; Keough v. Boston Elev. Ry. Co., 229 Mass. 275, 277-278, 118 N.E. 524; Tafralian v. Metropolitan Life Ins. Co., 316 Mass. 429, 430--432, 55 N.E.2d 777. Since this incompetent eviden......