Insurance Company v. Mosley/Dissent Clifford
Mr. Justice CLIFFORD, dissenting.

Questions as to the rules of evidence 'are of vest importance to all orders and conditions of men' interested therein, as parties in common law suits, as life, liberty, and property depend very largely upon their strict observance, that proper testimony, pertinent to the issue, may not be excluded, and that incompetent and improper testimony may not be received. 

'One of these rules,' says Chief Justice Marshall, 'is that hearsay evidence is, in its own nature, inadmissible. Not only because it supposes that better testimony might be adduced to prove the alleged fact, but on account of its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practised under its color.' Experience shows that wrong verdicts are the usual result of wrong rulings in admitting improper testimony, or in rejecting that which was competent and material. Appellate courts, viewing the matter in that light, are therefore prompt to correct such errors and to reverse judgments founded on verdicts produced or influenced by such erroneous rulings.

All courts agree, that the introduction of evidence to the jury is governed by certain fixed principles of law, and text writers usually treat the subject under four general heads: 1. That the evidence must correspond with the allegations and be confined to the issue. 2. That the substance of the declaration must be proved to warrant a verdict in favor of the plaintiff. 3. That the burden of proving a proposition or issue lies on the party holding the affirmative. 4. That the best evidence, of which the case in its nature is susceptible, must always be produced. 

Founded, as the action is, upon a policy of insurance, it becomes necessary, in order to understand the precise bearing of the rulings embraced in the exceptions, to examine the terms of the contract, and to refer to the exact issue tendered in the declaration. By the terms of the policy, insurance, for the period of one year, in the sum of five thousand dollars, was granted by the defendants to the late husband of the plaintiff, against 'personal injury caused by any accidents within the meaning of this policy.' . . . and such injuries as shall occasion death within three months from the happening thereof, and also against any such personal injury, though not fatal, if the assured was thereby absolutely and totally disabled from the prosecution of his usual employment. After setting out the policy in full, the declaration alleges that the assured, on the 1st of July in the same year, 'accidentally fell down a pair of stairs in the city of Chicago, in said county, and was severly injured thereby,' and that the assured, within three months after the happening of the said accident, died, and that the death of the assured 'was occasioned by said injury and accident.'

Defendants appeared and pleaded that they never promised in manner and form, as alleged in the declaration, which presented the direct issue, whether the assured met with the accident and injury described in the declaration, and whether his death was occasioned by 'the personal injuries caused' by that accident, as therein alleged. Payment of the sum insured, in case of such personal injury or death occasioned by any accident within the terms of the policy, was to be made to the plaintiff, and she was examined as a witness to support her claim against the defendant corporation.

Several witnesses 'testified as to back stairs being there, leading to the back yard,' but no witness testified that he saw the deceased fall down the steps,' and there was no testimony upon the subject, except that given by the plaintiff and the son of the deceased, as recited in the bill of exceptions. She testified, that between twelve and one o'clock, (July 18, 1866), he (her husband) got up and went down stairs for the purpose described; that she did not know how long he was gone, but 'when he came back, he said he had fallen down the stairs and almost killed himself; that he had hit and hurt the back part of his head in falling down the stairs which led out back.'

Objection was duly taken to the testimony of the witness as to the declarations of the husband, but the court overruled the objection, and the defendants then and there excepted.

His son was also examined and testified, that he saw his father, about twelve o'clock that night, lying with his head on the counter, and that 'he asked him what was the matter, and he answered, that he had fallen down the back stairs and hurt himself very bad.' Seasonable objection was also made to the introduction of this testimony, but the court admitted it, and the defendant excepted, as appears by the transcript.

Viewed in the light of the facts, as here stated, which are carefully and accurately drawn from the record, I am clearly of the opinion, that the declarations of the deceased, as given in the testimony of those witnesses, were inadmissible, and that the judgment of the Circuit Court should be reversed.

Mere declarations, made by a third person, not under oath, it is conceded are hearsay, but the argument is, that the declaration given in evidence in this case may be regarded as part of the res gestoe, and therefore, that the testimony of both witnesses was properly admitted as original evidence. Declarations of a party to a transaction, though he was not under oath, if they were made at the time any act was done which is material as evidence in the issue before the court, and if they were made to explain the act, or to unfold its nature and quality, and were of a character to have that effect, are treated, in the law of evidence, as verbal acts, and as such, are not hearsay, but may be introduced with the principal act which they accompany, and to which they relate, as original evidence, because they are regarded as a part of the principal act, and their introduction in evidence is deemed necessary to define that act and unfold its true nature and quality. 

But such declarations cannot properly be received as evidence, unless the principal act which they accompany and to which they relate, is, itself, material to the issue to be submitted to the jury, nor unless the declarations were made at the time the principal act was done, nor unless they were of a character to explain that act, or to unfold its true nature and quality, as they are only admissible as incident to the principal act, and because they are a part of it, and are necessary to explain and define its true character. 

When the inquiry is into the nature and character of a certain transaction, not only what was done, says Mr. Roscoe, but also what was said by those present, during the continuance of the transaction, is admissible for the purpose of illustrating its peculiar character and circumstances. 

Undoubtedly, whenever evidence of an act done by a party is admissible, the declarations he made, at the time the act was done, are also admissible, if they were of a character to elucidate and unfold the act, because they derive a degree of credit from the act itself, and do not rest entirely upon a statement not made under oath. 

Unless, however, they were made at the time the act was done, or during the continuance of the transaction constituting the principal fact, they are not admissible, as in that state of the case, they cannot derive any credit from the principal fact, which alone renders them admissible in evidence.

Verbal and written declarations are admissible, says Mr. Phillips, 'when they accompany some act, the nature, object, or motives of which, are the subject of inquiry.' In such cases, he says, words are receivable as original evidence, on the ground, that what is said, at the time, affords legitimate, if not the best, means of ascertaining the character of such equivocal acts as admit of explanation from those indications of the mind which language affords. 

Evidently, the rule as understood by the author of that work, would not admit the declarations, unless they were made at the time the act was done, or during the continuance of the transaction; but the annotator is even more explicit, as he expressly adopts the rule laid down in the leading case, that to be a part of the res gestae, the declarations must have been made at the time of the act done, which they are supposed to characterize, and have been well calculated to unfold the nature and character of the facts which they are intended to explain, and so to harmonize with them as obviously to constitute one transaction. 

Much of the difficulty in the application of the rule, arises from the nature of the principal act, especially, in cases where it is continuous, or extends for a considerable time, as in questions of domicile, or of bankruptcy; but there is no difficulty in applying the rule in cases where the principal act is single and well defined as to time, nor is there any well-considered case, which gives any countenance to the admission of such declarations, unless they were made at the time the principal act was done, or, as in the case of a riot, during the continuance of the transactions. 

Equity rules are the same as the rules at common law, as appears by the decision of Chancellor Walworth, In the matter of Taylor,  in which he held, that the declarations of parties, and other attending circumstances, in order to render them admissible as a part of the res gestae, must be contemporaneous with the main fact under consideration, and to which they were intended to give character. 

Suppose the rule to be that such declarations are inadmissible, unless made at the time the principal act was done, still it is contended that the rulings of the court, in admitting the declarations in this case, may be sustained as falling within the rule laid down in the case of Commonwealth v. McPike,  and the opinion of the majority of the court, as just read, rests chiefly upon that ground. The indictment, in that case, was for manslaughter, and the evidence introduced showed that the deceased, on the morning she received the mortal blow, ran from her room, where her husband, the defendant, was, to a room occupied by the witness, in the same house, crying murder; and when admitted to the room, she said she was killed. Another witness heard the cry of murder, and went for a watchman, and when he returned, he went to the room where the wounded woman was, and, among other things, she said to him that her husband had stabbed her, and told the witness what she wanted done, if she died.

Objection was taken to the statement, as to the declaration of the wife, that the defendant had stabbed her, but the court admitted the testimony, and the case was removed to the Supreme Court for revision. Other exceptions were taken to the rulings of the court, but they were all overruled, the court holding that the statement of the wife, as to the cause and manner of the injury, might be 'sustained, upon the ground that the testimony was of the nature of the res gestae.' No authorities are cited in support of the proposition, and the opinion, upon that point, is very brief, and seems to rest mainly upon the closing sentence upon that subject, which is as follows: 'In the admission of testimony of this character, much must be left to the exercise of the sound discretion of the presiding judge.'

Prior to that date, all the decisions of that court had been in strict conformity to the rule, that declarations not under oath, in order to be admissible as original evidence, must have been made at the time the principal act was done or committed, as before explained, unless they were admitted as declarations in articulo mortis; and every decision made by that court, upon that subject, since that case was determined, is equally explicit in prescribing the same rule. Reference will be made to a few of the subsequent cases to establish that proposition.

Where the bodily or mental feelings of a party are to be proved, the usual and natural expressions of such feelings are considered competent and original evidence in his favor.  Such evidence, however, say the court, is not to be extended beyond the necessity on which the rule is founded; and they add, that anything in the nature of narration or statement is to be carefully excluded, and the testimony (unless the statement was made by a patient to a medical man) is to be confined strictly to such complaints and expressions as usually and naturally accompany, and furnish evidence of, a present existing pain or malady. Before the year expired, the same question, under a different state of facts, was again presented to that court, and in view of the importance of the questions, and of their frequent occurrence, the court came to the conclusion to consider the subject somewhat more at large than they had theretofore done, and to set forth and illustrate 'the principles and tests by which this class of questions must be determined.'  They accordingly decided:

1. That the admission of such evidence is not left to the discretion of the presiding judge, as had sometimes been supposed; that its admission is governed by principles of law, which must be applied to particular cases as other principles are applied, in the exercise of a judicial judgment, and that errors of judgment in the case, as in other cases, may be examined and corrected. 

2. That a declaration, if it has its force by itself, as an abstract statement, detached from any particular fact in question, is not admissible in evidence, because it depends for its effect on the credit of the person making it, and therefore is hearsay.

3. That mere narrative is never admissible, because such statements are detached from any material act which is pertinent to the issue.

4. That whenever the act of the party may be given in evidence, his declarations, made at the time, are also admissible, if they were calculated to elucidate and explain the character and quality of the act, and were so connected with it as to derive credit from the act itself, and to constitute one transaction.

5. That there must be a main or principal fact or transaction, and that such declarations only are admissible as grow out of the principal transaction, serve to illustrate its character, are contemporary with it, and derive some degree of credit from it.

6. That the main act or transaction is not, in every case, necessarily confined to a particular point of time, but whether it is so or not depends solely upon the nature and character of the act or transaction.

Search is made in vain for any decided case, where the principles and tests which regulate and control the admission of such evidence is so satisfactorily stated, and with so much fulness and clearness as in that case. 

Narration of the cause and manner of the injury has been carefully excluded since that decision in the courts of that State, even where the statements were made by a patient to his physician, as will be seen by the case of Chapin v. Marlborough,  which was decided six years later.

By the statement of the case, it appears that the plaintiff called a physician, and wished him to examine his leg, saying that it gave him great pain, and the physician testified, that he said that he had been struck by a horse, on that leg, four or five months before.

Seasonable objection was made to the evidence, but the judge, at the trial, admitted it, and the case was transferred to the Supreme Court, where a new trial was granted. In disposing of the case, the court say, the exception must be sustained, which was to the admission of the plaintiff's statement to his physician, that his leg had been struck by a horse; and the court add, that it was a statement of a fact, 'and was used as evidence of that fact.' It was, therefore, wrongly admitted, which shows to a demonstration, that the evidence in this case was also wrongly admitted, because it was admitted and used as evidence to prove that the injury and death of the assured were occasioned by the alleged accident.

Death was occasioned by a stab, in the case of Commonwealth v. Hackett,  and it is suggested, that the ruling in that case qualifies the doctrine, as laid down in the preceding case, but there is no foundation for the suggestion, as the court say, that the declaration given in evidence was uttered immediately after the homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him, after so brief an interval of time, that the declaration or exclamation of the deceased (I am stabbed) may fairly be deemed a part of the same sentence as that which followed instantly after the stab with the knife was inflicted.

Many bodily sensations and ailments are of such a character that they can only be known to the person who experiences them, and, in view of that fact, the Supreme Court of that State decided, in the case of Barber v. Merriam,  that the statements of a patient to his physician, as to the character and seat of his ailments, when made for the purpose of receiving medical advice, were admissible in an action for a personal injury, but they expressly affirmed the doctrine of the previous decisions, to which reference has been made.

Declarations of a narrative character were again offered in the subsequent case of Commonwealth v. Densmore et al.,  and they were again rejected as hearsay evidence; and the leading case of Lund v. Tyngsborough was again approved and reaffirmed.

Examined in the light of the decisions made by the Supreme Court of Massachusetts, since the case of Commonwealth v. McPike, I am of the opinion, that the rulings of the Circuit Court, in this case, find no support from any reported case in the volumes of the Massachusetts Reports.

Next suggestion is, that those rulings may be sustained upon the authority of the case of Rex v. Foster,  and of the case of Thompson v. Trevanion,  but those cases are so imperfectly reported that they can hardly be said to be reliable. Grant, however, that the reports of the cases, though meagre, are reliable, still, I am of the opinion that the rules of evidence there adopted, are contrary to the modern decisions in both countries. They are both specially noticed by Mr. Roscoe, in his valuable Treatise on the Law of Evidence, and he says, they 'are difficult to reconcile with established principles.' Both admit the declarations to extend to the particulars of what was said, and though they (the declarations) were both made in close proximity to the event to which they relate, it is very questionable indeed, says the same writer, whether that ground alone is sufficient to render them admissible. 

Both of these cases are also cited by Taylor, in his more recent work upon the Law of Evidence, and yet, the rules which he promulgates, as tests to regulate the admission of such evidence, show that the rule adopted in those cases is not good law. His leading tests are as follows:

1. That declarations, though admissible as evidence of the declarant's knowledge or belief of the facts to which they relate, and of his intentions respecting them, are no proof of the facts themselves, and, therefore, if it be necessary to show the existence of such facts, proof aliunde must be laid before the jury. 

2. That, although acts, by whomsoever done, are res gestae, if relevant to the matter in issue, yet, if they be irrelevant, declarations, qualifying or explaining them, will, together with the acts themselves, be rejected. 

3. That where an act done is evidence per se, a declaration accompanying that act may well be evidence, if it reflects light upon or qualifies the act, but where the act is, in its own nature, irrelevant to the issue, and where the declaration per se cannot be received, no case has yet established the rule, that the union of the two will render them admissible. 

4. That an act cannot be varied, qualified, or explained by a declaration which amounts to no more than a mere narrative of a past transaction, nor by an isolated conversation, nor by an isolated act done, at a later period. 

Condemned by all these tests, it is impossible to admit, that the two cases relied on, as supporting the rulings of the Circuit Court, can be good law, and if not, then those rulings stand unsupported in principle, or by any well-considered English or American decision. 

Obviously, the main fact in the case before the court was the alleged accident, and the bill of exceptions finds that there was no other evidence to prove that material allegation than the testimony of the plaintiff, and the son of the deceased, who knew nothing of what had occurred, except what they were told by the injured party. 

Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible for that purpose, but they are not admissible to prove a past occurrence, nor to prove that they were occasioned by such an accident as that alleged in the declaration as the foundation of the plaintiff's claim.

Mr. Justice NELSON also dissents from the opinion and judgment of the court, in this case, and concurs in this opinion.

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