Loomis v. New York, N.H. & H.R. Co.

• Decision Date: 16 May 1893
• Citation: 34 N.E. 82,159 Mass. 39
• Parties: LOOMIS v. NEW YORK, N.H. & H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 39

34 N.E. 82

LOOMIS v. NEW YORK, N.H. & H.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

May 16, 1893

COUNSEL

J.B. Carroll, for plaintiff.

Robinson & Robinson, for defendant.

OPINION

KNOWLTON J.

The evidence that after the former verdict the witnesses Watkins and Potter signed affidavits of their knowledge of the facts upon which the motion for a new trial was founded, to the same effect as their testimony given at the last trial, was rightly excluded. The defendant could not add force to their testimony by showing that they had made the same statements a long time before. If there had been evidence from which the plaintiff could properly have argued that their testimony was manufactured just before the trial, a different question would be presented. But there was nothing on which to raise such an issue. If the jury were informed that these witnesses did not testify at the first trial, any inference to be drawn from that fact could be met without giving their former statements. Murchie v. Cornell, 155 Mass. 60, 29 N.E. 207.

The principal question in the case relates to the admissibility of a letter written to the defendant by a clerk of the plaintiff's attorney, under authority from the attorney purporting to state the facts on which her claim was founded. The bill of exceptions sets forth two letters written to the defendant by this clerk, two written to the attorney by the executive secretary of the defendant, and one afterwards written to the defendant by the attorney with his own hand. The first two, written by the clerk under authority from the attorney, were first offered, then testimony was introduced and the defendant offered the letters from the attorney to the defendant, "and also the letters of the defendant to Mr. Carroll," the attorney, and exceptions were taken to the refusal to admit them. It is clear that the defendant was not entitled to introduce the entire correspondence, for it contains statements of the executive secretary favorable to the defendant which were not competent. Perhaps, also, the last letter of the plaintiff's attorney, which he wrote with his own hand, was inadmissible, as containing opinions and comments which were strictly personal, and outside of the scope of his employment. It is contended that the only question open to the defendant is whether the entire correspondence was competent, but we are of opinion that the question whether the first two letters were competent was intended to be saved by the bill of exceptions. The object of the evidence was to show that, when the plaintiff presented her claim through her attorney, it was for a fall at a place near where the defendant's evidence at the trial tended to show that it occurred, and where the stairs were in perfect condition, and not at the place where the plaintiff located it in her testimony. Upon the issue raised, the fact sought to be proved was material and important. We are also of opinion that the method of proof was competent and proper. The undisputed evidence tends to show that the attorney had been employed to represent her in the collection of a claim against the defendant for damages resulting from a fall in the defendant's railroad station at Hartford. The terms of his employment do not expressly appear. But a fair inference from the evidence is that he was not merely employed to bring a suit, but was authorized to present the plaintiff's claim, and to endeavor to obtain a settlement of it without a suit. If this was his authority we have no occasion to consider the cases holding that admissions which are mere matters of conversation with an attorney, though they relate to the facts in controversy, cannot be received in evidence against his client. Such admissions are not within the scope of his employment. Nor have we any reason to consider in this case the general authority of an attorney, by virtue of his position as an attorney at law in charge of a suit, to bind his client by agreements in reference to the management or disposition of the suit. See Lewis v. Sumner, 13 Metc. (Mass.) 269; Saunders v. McCarthy, 8 Allen, 42; Pickert v. Hair, 146 Mass. 1, 15 N.E. 79. The maxim, "qui facit per alium facit per se," applies as well to acts done or statements made by an attorney at law as by any other agent. The act of a party, done by his agent, may always be proved against him, if material. An attorney or agent employed to present and collect a claim is impliedly authorized to state to the debtor what the claim is. The plaintiff could not have expected that her attorney would collect her claim from the defendant, on demand, without stating the nature and particulars of it, so that the defendant could understand it, and make investigation in regard to its validity. It was as much a part of his duty to state, as nearly as possible, the precise place in the building where the accident happened, if asked to, as to state in what town or state the plaintiff was when she fell. The defendant's letter of January 7, 1891, inquiring for particulars, is competent, in connection with the letter of January 10th, which purports to be an answer to it, to show how the statement came to be made; and the two together, in connection with the first letter, of January 5th, show conclusively that writing the words, "she fell on the third or fourth step from the bottom of the stairway across the tracks from the waiting room," was strictly within the authority of her attorney employed to present and collect her claim. The fact that they were not written by her own hand, but by an agent who was acting under instructions received through her husband, who was also her agent in the same business, affects the weight, but not the competency, of the evidence. 1 Greenl.Ev. § 186; Marshall...