Worez v. Des Moines City Ry. Co.

CourtUnited States State Supreme Court of Iowa
Citation156 N.W. 867,175 Iowa 1
Docket NumberNo. 29712.,29712.
PartiesWOREZ v. DES MOINES CITY RY. CO.
Decision Date15 March 1916

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; Chas. A. Dudley, Judge.

Suit for personal injuries. Verdict for plaintiff. Plaintiff appeals, claiming the verdict is inadequate. Affirmed.O. M. Brockett and John McLennan, both of Des Moines, for appellant.

Parker, Parrish & Miller, and A. G. Rippey, all of Des Moines, for appellee.

SALINGER, J.

I. The witness Lambert testified that in the fall of 1910 he took the application of plaintiff for sickness and accident insurance; that the application was taken in duplicate; that plaintiff signed one, and not the other; that the signed application was transmitted to the insurer in the state of New York; and that witness does not know where it now is. The witness produced the unsigned duplicate, and it is known in this record as Exhibit 1. It is written therein that applicant had in the past had “acute attacks of rheumatism at times, but not severe.” The witness says these words are in his writing; that, when he prepared the blank, the plaintiff, as witness recalls, said that she had had at times attacks of rheumatism; that he made this written statement from what plaintiff said just before he made it, and wrote down her statement correctly as plaintiff stated it. Thereupon plaintiff offered Exhibit 1 in connection with the testimony of this witness, so far as it relates to said statement. We have to determine whether objections made to this testimony, and to this exhibit, that same are incompetent, immaterial, and not the best evidence, were rightly overruled. We shall not attempt to follow the counsel into all the ramifications of their dispute on this point, but hold the objections are not well made, because:

[1][2] 1. The testimony and the introduction of the paper was no attempt to prove by secondary evidence the contents of the signed paper sent to New York. It is all merely the equivalent of: (1) Testimony that plaintiff made statements as to the condition of her health prior to the accident in suit, and that the witness at the time the statement was made correctly reduced it to a written memorandum; and (2) thereupon introducing said memorandum. In a general way, it is the equivalent of a memorandum made by a disinterested person before any controversy arose, and which he knows he made truly at the time when he made it, because he remembers what was said, and his thereupon testifying, independently of the writing, what was said. Neither the oral testimony nor the admission of this memorandum violated any rule as to best or as to primary and secondary evidence. All was merely a method of showing what oral statements plaintiff had made as to her bodily condition at a time before the acts of defendant injured her.

[3] 2. On any theory the testimony was not objectionable, because the original was outside of the jurisdiction and in the state of New York, and not under the control of the party offering it, and because the party who had the original is not a party to the suit.

As we read it, the text in 17 Cyc. p. 527, militates against, rather than helps, the position of appellant. It declares fairly that, where a paper is out of the jurisdiction, the ordinary rules as to secondary evidence do not govern. Hawkins v. Rice, 40 Iowa, 435, merely holds that a written assignment cannot be established by parol upon a showing that the instrument had been sent to the clerk for record, and not returned, because such assignment is still constructively in the possession of the assignee; and Grimes v. College, 42 Iowa, 590, applies said ordinary rules because, there was no positive and direct evidence showing where it was or who had the contract at the time of the trial, or that it was lost or mislaid. We think Adams v. Coulliard, 102 Mass. 167, 173, squarely sustains the trial court.

Kennell v. Boyer, 144 Iowa, 306, 122 N. W. 941, Ann. Cas. 1912A, 1127, is that memoranda made in a transaction where the maker acts as agent for both parties are admissible. Donovan v. Railway, 158 Mass. 450, 33 N. E. 584, holds memoranda are admissible where there is no reasonable possibility that they were intentionally made incorrect; where made by one acting in the line of duty and in the usual course of employment, under conditions which tended to make the entry correct; made before any controversy had arisen, and when all concerned had no interest except to know and state the truth. According to Inhabitants of Townsend v. Pepperell, 99 Mass. 40, on issue of the insanity of a patient during a certain period, a record of his condition and treatment as a patient in a hospital, produced at a trial 40 years after its date by the superintendent of the hospital as part of a series of records of which he is the official custodian, purporting to be contemporaneously made by the attending physicians, and which it is their duty to make, is admissible in evidence as a foundation for the opinion of an expert whether it indicates mental disease of the patient, without identifying the person who made it. State v. Brady, 100 Iowa, 191, 200, 69 N. W. 290, 36 L. R. A, 693, 62 Am. St. Rep. 560, decides that in a prosecution for embezzlement from a railroad corporation memoranda consisting of the records of its ticket office showing daily sales there during a given year should be admitted, where it is conceded the agent could not know from memory the facts stated in the memorandum, and are admissible as substantive evidence under the same circumstances as if a witness said he knew they were true when made, but had no independent recollection either before or after examining them as to the sales to which they refer. In Graham v. Dillon, 144 Iowa, 82, 121 N. W. 47, we hold that, if a witness can testify that at or about the time a memorandum or entry was made he knew its contents, and knew it to be true, his testimony and the memorandum are both competent evidence, although the witness cannot testify to the facts as a matter of independent recollection, even after his memory has been refreshed. And see Edwards v. City, 138 Iowa, 423, 424, 116 N. W. 323.

[4] II. As we view it, the only material testimony given by the witness Lambert was that the duplicate, Exhibit 1, truly states something which the plaintiff told the witness. Plaintiff was allowed to contradict this by stating that she was never, in fact, afflicted with rheumatism, and that she did not tell him she had suffered acute attacks of rheumatism, but not severe ones. It is complained that she was not also permitted to say that the duplicate was not a true copy of the signed application. Whether it was or not is material and relevant to nothing before the court when this testimony was excluded. Whether the signed application sent to New York did or did not contain this statement as to rheumatism had no bearing on whether such declaration as the witness wrote into the duplicate was made. That witness made this written memorandum in but one paper, rather than in two, did not affect the material portions of his testimony.

[5] 2. In sustaining objection to this the judge said he did not know how the plaintiff may know whether this statement is contained in the original; the original not being in court. We do not agree to the claim that this not only excluded the proposed testimony, but discredited and destroyed evidence put in earlier. That the court thought the witness might not be able to say from memory whether the duplicate was a copy of the other did not indicate to the jury that she could not be able to remember whether or not she ever made a statement that she had had acute attacks of rheumatism. At any rate, there is neither error point nor brief point which complains of this alleged misconduct of the trial judge. The objection presented to us is that this testimony was excluded, and not the manner in which it was excluded.

[6][7] 3. We see no force in the argument, that even though this evidence might rightfully have been excluded on rebuttal because it was not rebuttal, or was a repetition, it was error to exclude it on the objection made that it was not the best evidence. In the first place, testimony that a paper before the court is not a true copy of one not before the court is vulnerable to the objection of not being the best evidence. Moreover, while where complaint is made of the overruling of an objection the trial ruling will not be disturbed unless objection covering the point was made, this rule of appellate review is based on the thought that, if specific objection had been made below, the ruling might have been different, and no occasion to appeal have arisen. This is not the rule where the sustaining of an objection is complained of. Where for any reason it was right to sustain the objection, the ruling will not be disturbed because it was made without the presentation of sufficient argument, or without apprehension of the true reason for making it. In re Crissick, 156 N. W. 416, decided at this term.

[8][9] III. Complaint is made of overruling the plaintiff's objection to evidence of Dr. Lambert, which was to the effect that plaintiff was brought to his office in March, 1910, about one year and nine months before accident in suit, that she then completed a claim for some accident she had had, that she said she had fallen down a stairway and hurt her shoulder and that no one saw this accident, and that Lambert was of opinion the trouble was due to a rheumatic disease of the shoulder. The assignment refers us to lines 18 to 32, page 50, of abstract. There we find Lambert does say plaintiff was then brought to his office to complete a claim for some accident she had had, that she said she had fallen down a stairway and hurt her shoulder and that no one saw this accident, and that he made an examination of the shoulder at that time. We also find that no objection whatever was made to this. But there was this, more:

“Q....

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5 cases
  • State v. McDougal
    • United States
    • Iowa Supreme Court
    • 7 Marzo 1922
    ... ... cases cited in the note. See, also, 16 Corpus Juris 543, 544; ... Worez v. Des Moines City R. Co., 175 Iowa 1, 156 ... N.W. 867; State v. Lee, 91 Iowa 499, 60 N.W. 119; 1 ... ...
  • State v. McDougal
    • United States
    • Iowa Supreme Court
    • 7 Marzo 1922
    ...relevant are legally admissible. 22 C. J. 158, and numerous Iowa cases cited in the note. See, also, 16 C. J. 543, 544; Worez v. Railway, 175 Iowa, 1, 156 N. W. 867;State v. Lee, 91 Iowa, 499, 60 N. W. 119; 1 Wharton's Criminal Evidence, 147 (10th Ed.); 1 Jones Evidence, 894, 897; 3 Rice on......
  • Worez v. Des Moines City Railway Co.
    • United States
    • Iowa Supreme Court
    • 15 Marzo 1916
  • Patterson v. Johnson
    • United States
    • Iowa Supreme Court
    • 25 Octubre 1919
    ...value where but two of them are done. Sater's Case, 1 Iowa, 394; In re Clark, 174 Iowa, 458, 154 N. W. 759, 156 N. W. 353;Worez v. Railway, 175 Iowa, 17, 156 N. W. 867. The plaintiff was entitled to nothing except such damages, if any, as he sustained by the alleged breach of contract on pa......
  • Request a trial to view additional results

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