Rowland v. Philadelphia & B. R. Co.

• Decision Date: 13 December 1893
• Citation: 28 A. 102,63 Conn. 415
• Court: Connecticut Supreme Court
• Parties: ROWLAND v. PHILADELPHIA & B. R. CO.

28 A. 102

63 Conn. 415

ROWLAND

v. PHILADELPHIA & B. R. CO.

Supreme Court of Errors of Connecticut.

Dec. 13, 1893.

Appeal from superior court, Hartford county; Robinson, Judge.

Action by one Rowland against the Philadelphia & Baltimore Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Action for personal injuries received by the plaintiff while a passenger on the defendant's railroad, in consequence of a collision of cars, brought to the superior court in Hartford county, and after a default, before Robinson, J. Pending the suit, and before the hearing, the plaintiff died, and the executor of his will entered to prosecute. Judgment was recovered for $5,000 damages, from which this appeal was taken by the defendant, on account of certain rulings as to the admission of evidence, which was stated in the opinion.

E. D. Robbins, for appellant.

H. C. Robinson, for appellee.

BALDWIN, J. The injuries for which this action was brought were received by means of a railroad accident, which happened April 9, 1892. On May 9th the plaintiff, who was a physician, made and signed, for the use of his counsel, a written statement of the nature and causes of the accident and the character of his injuries. He prepared it to enable them to present a proper claim for compensation to the defendant. On October 4th the suit was brought, and on October 8th he consulted a physician, Dr. Curtis, of Hartford, professionally. After the defendant had suffered a default, the plaintiff's deposition was taken for use in evidence, and a few weeks later he died. The executor of his will entered to prosecute, and, upon the hearing in damages, offered the deposition in evidence. After it had been introduced, he offered the statement of May 9th. The defendant objected to its admission because the plaintiff had given his deposition in the cause, and also because it was "evidently prepared for the purposes of a claim for the injuries of Dr. Rowland;" but the objection was overruled, and the paper admitted. This memorandum, among other things, stated that by the collision of the train in which the plaintiff was, with the wreck of another train, he was thrown against the arm of a seat, suffered a "nervous shock," and "broke two of my ribs in the left side, which at my age (61) is a very serious matter;" and that his disabilities from said injuries are "permanent." Gen. St. § 1094, provides that, "in actions by or against the representatives of deceased persons, the entries, memoranda, and declarations of the deceased, relevant to the matter in issue, may be received as evidence." This statute, so far as it applies to written statements, was passed two years after the act of 1848, by which parties and interested witnesses were allowed to testify in any cause. That act had been found to give "living parties a very great advantage over representatives of the dead," and, to obviate this evil, the statute in question was enacted. Bissell v. Beckwith, 32 Conn. 516. The present suit, at the time of the hearing in damages, was an action by the representatives of a deceased person, and, although it only became such after the interlocutory judgment of default, we think that is fully within the reason and meaning of the statute. That the paper was prepared and given to counsel for the purpose of making a claim on the defendant constituted no valid objection to its admission. Bissell v. Beckwith, supra. Whether those of its statements which set forth mere matters of opinion were admissible it is unnecessary to inquire, since the only objections taken went to the paper as a whole. One of these objections, however, presents a novel and important question. It is that as the plaintiff, by his deposition, had already been a witness on the hearing, the statute did not apply, because the reason for its application in ordinary cases did not exist in this. The act of 1848, by removing the common-law disqualification of interest, brought two important witnesses—the plaintiff and defendant—into the trial of almost every suit. Two years of practice under its provisions convinced the legislature that, when the accident of death had withdrawn one of these witnesses, the testimony of the other gave him, as a party, an undue advantage. The act of 1850 was intended to restore, so far as might be, the footing of equality between him and the representatives of the...