Vicksburg v. Brien

• Court: United States Supreme Court
• Writing for the Court: HARLAN
• Citation: 30 L.Ed. 299,7 S.Ct. 172,119 U.S. 99
• Decision Date: 01 November 1886
• Parties: VICKSBURG & M. R. Co. v. O'BRIEN and others

119 U.S. 99 7 S.Ct. 172 30 L.Ed. 299 VICKSBURG & M. R. Co. v. O'BRIEN and others. November 1, 1886.

Wm. L. Nugent, E. M. Johnson, George Hoadly, and Edward Closton, for plaintiff in error.

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E. C. Catchings, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

1. At the trial the plaintiffs offered to read to the jury the deposition of a physician, and did read the first, second, and third interrogatories propounded to him, and the answers thereto. Responding to the first and second interrogatories, he stated, among other things, that his attendance upon Mrs. O'Brien commenced on the sixteenth of September, 1881; that he found her suffering extreme pain and in a very nervous condition, resul ing a few hours before from a railroad accident on defendant's road; that such was the cause of her injuries

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he knew from her own answers, from the statement of her brother-in-law, and from attending others who were on the train with her. The third interrogatory and answer were as follows: '(3) Look on the accompanying statement, dated November 26, 1881, and state if it was written by you at the date it bears, for what purpose it was written, and to whom it was delivered. Does the statement represent substantially and correctly Mrs. O'Brien's condition as it appeared when you first saw her, and as it continued up to November 26, 1881? Answer. I have looked upon the statement referred to, which was written by myself, at Mr. O'Brien's request, at the date mentioned, when he was about to take his wife away from here to his home in New Orleans, and was intended to convey an idea of how she was when I was called to see her, and what her condition was when she left my charge; and in my opinion I correctly stated her condition at times referred to.'

The written statement referred to in the interrogatory was signed by the witness, and attached to his deposition as an exhibit. It was addressed to Mr. O'Brien, and sets forth, with much detail, the nature of the injuries received by the wife, and their effect upon her bodily and mental condition. It also embodied an expression of the witness' opinion as to the probable length of time within which she might recover from her injuries. The plaintiff, before reading the remaining interrogatories and answers, offered to read this statement to the jury as evidence. The company objected, upon these grounds: That it was not made by the witness under oath, and in defendant's presence, or with its knowledge and consent; that it was hearsay evidence, and, therefore, wholly incompetent; and that, in any event, it could only be referred to by the witness to refresh his recollection. The court overruled the objection and permitted the statement to be read in evidence, the defendant taking an exception thereto, which was allowed. The remainder of the deposition was then read to the jury.

We are of opinion that this ruling cannot be sustained upon any principle recognized in the law of evidence. The

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authorities are uniform in holding that a witness is at liberty to examine a memorandum prepared by him, under the circumstances in which this one was, for the purpose of refreshing or assisting his recollection as to the facts stated in it. But there are adjudged cases which declare that, unless prepared in the discharge of some public duty, or of some duty arising out of the business relations of the witness with others, or in the regular course of his own business, or with the knowledge and concurrence of the party to be charged, and for the purpose of charging him, such a memorandum cannot, under any circumstances, be admitted as an instrument of evidence.¹ There are, however, other cases to the effect that, where the witness states under oath that the memorandum was made by him presently after the transaction to which it relates for the purpose of perpetuating his recollection of the facts, and that he knows it was correct when prepared, although after reading it he cannot recall the circumstances so as to state them alone from memory, the paper may be received as the best evidence of which the case admits.²

The present case does not require us to enter upon an examination of the numerous authorities upon this general subject, for it does not appear here but that at the time the witness testified he had, without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection, there was no necessity whatever for reading that paper to the jury. Applying, then, to the case the most liberal rule announced in any of the authorities, the ruling by which the plaintiffs were allowed to read the physician's written statement to the jury a evidence, in itself, of the facts therein recited, was erroneous.

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It is, however, claimed, in behalf of the plaintiffs, that in his answers to other interrogatories the physician testified, apart from the certificate, to the material facts embodied in it, and that therefore, the reading of it to the jury could not have prejudiced the rights of the defendant, and, for that reason, should not be a ground of reversal. We are unable to say that the defendant was not injuriously affected by the reading of the physician's certificate in evidence. It is not easy to determine what weight was given to it by the jury. In estimating the damages to be awarded in view of the extent and character of the injuries received, the jury, for aught that the court can know, may have been largely controlled by its statements. The practice of admitting in evidence the unsworn statements of witnesses, prepared in advance of trial at the request of one party, and without the knowledge of the other party, should not be encouraged by further departures from the established rules of evidence. While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was commited it is well settled that a reversal will be directed unless it appears beyond doubt that the error complained of did not and could not have prejudiced the rights of the party. Smiths v. Shoemaker, 17 Wall. 630, 639; Deery v. Cray, 5 Wall. 795; Moores v. National Bank, 104 U. S. 630; Gilmer v. Higley, 110 U. S. 50; S. C. 3 Sup. Ct. Rep. 471.

2. At the trial below, plaintiffs introduced one Roach as a witness, who, during his examination, was asked whether he did not shortly after the accident have a conversation with the engineer having charge of defendant's train at the time of the accident about the rate of speed at which the train was moving at the time. To that question the defendant objected, but its objection was overruled, and the witness permitted to answer. The witness had previously stated that, on...