McKinstry v. Collins

• Decision Date: 27 February 1902
• Citation: 52 A. 438,74 Vt. 147
• Parties: McKINSTRY v. COLLINS et al.
• Court: Vermont Supreme Court

52 A. 438

74 Vt. 147

McKINSTRY

v. COLLINS et al.

Supreme Court of Vermont. Washington.

Feb. 27, 1902.

Exceptions from Washington county court; Watson, Judge.

Action by Morris McKinstry against O. R. Collins and B. H. Lovell. Judgment for defendants, and plaintiff brings exceptions. Reversed. With this case was heard the plaintiff's petition for a new trial. Dismissed.

The alleged cause of action arose while the defendants were attempting to serve a writ of replevin for a certain colt in the plaintiffs possession.

Argued before ROWELL, TYLER, MUNSON, START, and STAFFORD, JJ.

H. C. Shurtleff and R. M. Harvey, for plaintiff.

J. P. Lamson and Geo. W. Wing, for defendants.

START, J. The action is case. The plaintiff seeks to recover damages for an alleged assault upon his wife, which it is claimed caused her death. The plaintiff's evidence tended to show that at the time of the assault his wife was pregnant; that the alleged injury so affected her health as to make her immediately ill, and to cause the death and decomposition of the child while within the mother, thereby producing septicaemia, or blood poison, from which she died. The plaintiff improved E. A. Wilber, a practicing physician, who testified that he was called to see the plaintiff's wife at the time of childbirth. He described the condition in which he found her, and testified that the child was born before he arrived there; that the mother was suffering from septicaemia; that she eventually died of that disease; that septicaemia, or blood poisoning, might be caused by several different things or conditions within the mother; that among the possible causes was a dead fœtus; and that unskillful handling of the mother by physicians or nurses during childbirth might cause septicaemia. The plaintiff's counsel then asked the witness the following question; "Now, doctor, assuming that you arrived at this place from five to ten minutes after the child was born, and finding the condition that you did, could that septicaemia have been caused by any external handling of the physicians or nurses during childbirth?" The question was excluded, and the plaintiff excepted. The examiner then stated that he offered to exclude the hypothesis that this could have been caused by any unskillful handling at the time of childbirth. This was, in effect, an offer to rebut any inference that the septicaemia which the witness found the patient suffering from when he arived there was caused from any unskillful handling by physicians or nurses at the time of childbirth. The plaintiff having testified that the witness arrived there from five to ten minutes after the child was born, and the doctor having testified that a dead foetus within the mother and unskillful handling during childbirth were among the possible causes of septicaemia, and it being claimed by the plaintiff that the dead foetus within the mother caused the septicaemia, the plaintiff had a right to show by the doctor that septicaemia could not have set in and developed to the extent found by him when he arrived there between childbirth and the time of his arrival. The question was framed with reference to one phase of the doctor's testimony, which, without further testimony, might account for the condition in which the doctor found the patient, without reference to the death or decomposition of the child within the mother, and pointed to that particular phase of the testimony, and was calculated to rebut any inference that the condition found by the doctor was due to unskillful handling at the time of childbirth; and it was error to exclude It The fact that the examiner did not include in the question the time that elapsed between the beginning of labor and the birth of the child did not render the question inadmissible. A hypothetical question is not Inadmissible because it includes only a part of the facts which the evidence tends to prove, such omission only affecting the weight to be given to the evidence. State v. Doherty, 72 Vt. 392, 48 Atl. 658, 82 Am. St. Rep. 951; Johnson v. Castle, 63 Vt 452, 21 Atl. 534.

As tending to show that the plaintiff's wife died of pneumonia, the defendants were permitted, subject to the plaintiff's exception, to introduce in evidence a certified copy of the record in the town clerk's office of the certificate of death made by Dr. Wishart, one of her attending physicians during her last illness. The certificate seems to have been made in conformity to section 7 of No. 56 of the Acts of 1896, which provides, in part, that any physician who has attended a deceased person during his or her last illness shall at once fill out and forward to the health officer a certificate giving the date of death, the name, age, sex, and, if a male over fifteen years of age, the occupation of the deceased person, the cause of death, place of death, place of birth, and the names of the parents of the deceased, so far as these facts are ascertainable. It is evident from the source from which the certified copy came that the certificate was returned by the health officer to the town clerk, as provided by section 8 of the act, and by the clerk recorded, pursuant to the requirements of section 3 of the act, which provides that town and city clerks shall receive, number, and record in the order in which they are received, all certificates of births, marriages, and deaths in their respective towns and cities, in the books furnished to them by the secretary of the state board of health, and that each record shall show when it was made. It is clear that the record of a certificate made and recorded in conformity to these provisions of law is a public record, and that a certified copy of such a record is admissible in evidence, and is presumptive evidence of such facts stated therein as the attending physician is, by law, required to certify to, and are presumably within his personal knowledge. 1 Greenl. Ev. §§ 483, 484, 493. While the cause of death is more or less uncertain, it would seem, in the absence of a post-mortem examination, that an attending physician would be more likely to have personal knowledge of the cause of death than any other person, and that his certificate of the cause of death should be regarded as a statement of a fact within his personal knowledge, and therefore within the rule above stated. In Town of Derby v. Town of Salem, 30 Vt. 722, it was held that a certified copy of a record of the birth of children, made by the town clerk from information received from the mothers of the children, was admissible in evidence. It being the official duty of the town clerk to make such a record, a duly authenticated copy of it was, prima facie, admissible as evidence of the facts which it embodied. In 9 Am. & Eng. Enc. Law (2d Ed.) 880, it is said that documents of a public nature and of public authority are generally admissible in evidence, although their authenticity is not confirmed by the usual test of truth,—the obligations of an oath,—and the power of cross-examination. In Stephen's Digest of the Law of Evidence, 80, it is said that an entry in any record, official book, or register kept in any of her majesty's dominions, or at sea, or in any foreign country, stating, for the purpose of being referred to by the public, a fact in issue or relevant or deemed to be relevant thereto, and made in proper time by any person in the discharge of any duty Imposed upon him by the law of the place in which such record, book, or register is kept is itself deemed to be a relevant fact.

The plaintiff offered in evidence the bond taken to the defendant in the replevin suit for the purpose of showing by the bond itself that defendant Collins did not have the statutory bond at the time he served the writ. We have not been furnished with a copy of the bond, nor has the bond been produced before us. We have nothing from which we can determine whether the bond tended to prove the facts sought to be shown by it, and for this reason this exception is not considered.

At the close of the evidence the plaintiff's counsel stated that the defendants stood on two inconsistent defenses, namely, that they did not assault the plaintiff's wife, and, if they did touch her, they did no more than was necessary to enable defendant Collins to serve the replevin writ; and counsel requested that the defendants be made to elect on which defense they would proceed. This request was refused, to which the plaintiff excepted. The plaintiff also excepted to the submitting of these so-called inconsistent defenses to the jury. These exceptions are not sustained. It is stated in the exceptions that the defendants' plea was the general issue, with notice of special matter in justification. V. S. § 1149, provides that the defendant in an action may plead the general issue, and upon the trial of the cause on such general plea may give special matter in evidence in his defense or justification, according to the nature of the action, by giving notice in writing, with the plea, of the special matter upon which he will rely in such defense or justification; and no special matter shall be allowed in evidence except such as is particularly mentioned in such notice in writing. The defendants have pleaded the general issue, and given notice of special matter in justification, under this statute. It was incumbent on the plaintiff to show that the defendants assaulted his wife and the defendants could give evidence in justification of the claimed assault without thereby proving that they made the assault. They could also give evidence tending to show that they did not make the assault without thereby disproving their justification. Therefore the pleadings and evidence did not present a case in which...