Little v. Massachusetts Northeastern St. Ry. Co.

• Decision Date: 06 April 1916
• Citation: 223 Mass. 501,112 N.E. 77
• Parties: LITTLE v. MASSACHUSETTS NORTHEASTERN ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 501

112 N.E. 77

LITTLE

v.MASSACHUSETTS NORTHEASTERN ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

April 6, 1916.

Exceptions from Superior Court, Essex County; James H. Sisk, Judge.

Action by Catherine G. Little, administratrix, against the Massachusetts Northeastern Street Railway Company. Verdict for the plaintiff, and defendant excepts. Exceptions sustained.

E. S. Underwood, of Lynn, for plaintiff.

J. J. Ryan and James T. Fitzgerald, both of Haverhill, for defendant.

DE COURCY, J.

Dr. Pierce, who had treated the plaintiff's intestate after the accident, was not living at the time of the trial. Subject to the defendant's exception, the plaintiff was permitted to answer the question: ‘While Dr. Pierce was treating Mr. Little, did Dr. Pierce tell you what was the cause of his condition?’ The purpose was to disclose the opinion expressed by the physician either as to the nature of the ailment from which his patent was suffering, or as to the cause which was responsible for that condition.

[1] It may be assumed, as urged by the plaintiff now and at the trial, that if Dr. Pierce were living he would be permitted as attending physician to give certain opinion evidence in connection with the facts coming under his observation, without qualifying as an expert. See Hastings, Ex'r, v. Rider, 99 Mass. 622. But it does not necessarily follow that the statement of an opinion expressed by him would be admissible under R. L. c. 175, § ute. Declarations of deceased persons, in order to be admissible under R. L. c. 175, § 66, must have been made not only in good faith, but ‘upon the personal knowledge of the declarant.’ In general they must be derived from the exercise of the declarant's own senses as distinguished from opinions based upon data observed by him or furnished by others. While it often is difficult to trace the logical or legal distinction between facts and opinions (see Wigmore on Evidence, § 1919) this court, in construing the statute, has recognized that where the declaration admittedly is one of opinion it is not admissible. Slotofski v. Boston Elevated Ry., 215 Mass. 318, 321, 102 N. E. 417;Whitcomb v. Whitcomb, 217 Mass. 558, 105 N. E. 613;Johnson v. Foster, 221 Mass. 248, 251, 108 N. E. 928;Grat v. Kelley, 190 Mass. 184, 76 N. E. 724. In the present case the facts on which the trial judge admitted the question are undisputed, and the admissibility of the declaration is before us for review on the defendant's exception. Ames v. N. Y., N. H. h. r. r., 221 m/ass. 304, 108 N. E. 920. It seems plain...