author: Nicholls, O. J.

text:
    No. 13,328.
    Mrs. Harriet C. Marler, Widow, and Mrs. Harriett C. Marler, Tutrix, vs. The Texas and Pacific Railway Company.
    Syllabus.
    where tlio res gestae in an action for damages for personal injuries are the facts and circumstances under which the plaintiff-left a car of the defendant company, his declarations relative thereto, not made spontaneously and instinctively under the immediate pressure of the occurrence, but deliberately in answer to questions as to how the accident occurred, propounded to him, out of the presence of any one who was an, actor in the transaction and a considerable time after it had become an accomplished fact, and the conductor and his train were miles away, are not admissible in evidence as part of such res gestae.

    Such declarations are not rendered admissible neither by the fact that they were made under a sense* of impending death or by the fact that they may have been made to the physician called in to minister to him.
    APPEAL from the Tenth Judicial District, Parish of Rapides. Hunter J.

      John G. Blachman and Horace H. White for Plaintiff, Appellee.

      Howe, Spencer & Coche, and M. G. Mosley, (Robert P. Hunter, of Counsel,) for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff, as widow of M. M. Marler and natural tutrix of the minor children, issue of their marriage, asks judgment against the defendant for damages for personal injuries received by the husband and father.

The prayer is based upon allegations that, on or about the 19th day of August, 1898, the said M. M. Marler, husband to the widow, and father to the children, boarded the evening (or cannon ball) train of tlife defendant company at New Orleans, La., as a passenger for Alexandria, Rapides Parish, Louisiana; that said train reached Alexandria about 3:45 A. M. on August, 20th, 1898; that M. M. Marler was taken beyond his destination without his knowledge or fault; that he attracted the attention of the conductor of said train to this fact immediately, or very soon after its departure from Alexandria; that through the gross and criminal negligence of said company the train of said company was stopped at a point that rested the coach, in which Marler-properly and legally was a passenger, about one hundred feet from the upper point of the first trestle beyond the first water tank above Alexandria; that the conductor of said train, at this point in Rapides Parish, ordered the said M. M. Marler to alight, which he did; that immediately upon stepping from the steps of the coach, he fell to the ground a distance of about fifteen or twenty feet, thereby sustaining injuries from which he died on or about August 23rd, 1898; that the said Marler was guilty of no contributory negligence whatsoever in the accident which befell him, but that his death was occasioned through the gross, careless, culpable and criminal negligence of the defendant company; that Marler was about 43 years of age, in good health, industrious, and the sole support of his wife and children, and that by his death they have been deprived of his support, companionship and protection, and have been damaged in the sum alleged.

In view of the premises, plaintiff prayed for citation on defendant; that there be judgment in favor of Mrs. Harriet C. Marler, widow, for the sum of ten thousand dollars, and Mrs. Harriet 0. Marler, tutrix, for five thousand dollars for each of said minor children, with legal interest from judicial demand until paid, against the defendant, the Texas and Pacific Railway Company.

Defendant excepted that the District Court was without jurisdiction. That the domicile of this defendant was in the Parish of Orleans, Louisiana, where alone it could be sued upon such a cause of action as that set forth in plaintiff’s petition.

The exception was overruled.

Under benefit of its exception, defendant answered.

After pleading the general issue, it expressly denied that the relation of passenger and carrier existed between the said M. M. Marler and itself at the time said injuries to said Marler occurred, but, on the contrary, it averred that if said relation ever existed, same had terminated before the happening of said injuries.

Defendant expressly denied that the said Mar'ler’s injuries resulted from any act, neglect or default on its part, or of any one for whose acts it was liable or legally responsible, but, on the contrary, it averred that if Marler suffered any injury, same resulted from, or was contributed to, by his own act, neglect or default, and it expressly denied any liability or responsibility in the premises. •'

The case was tried before a jury, which returned the following verdict:

“We, the jury, find verdict for plaintiff against defendant for twenty thousand dollars for widow and children, as follows: Three thousand dollars for each child, and two thousand dollars to widow.”

The court rendered judgment in conformity to the verdict after overruling a motion for a new trial filed by the defendant.

Defendant appealed.

OPINION.

This suit is brought by the widow of M. Ml Marler, in her own right and as tutrix of the minor children, issue of her marriage with her said husband, to recover damages from the defendant company, for the death of her husband averred to have been caused by the fault and negligence of its employees.

The evidence establishes that Marler took passage, at New Orleans, on the 19th of August, 1898, on a train of the defendant company, under a ticket purchased by him, from New Orleans to Alexandria; that he seated himself in one of the ordinary coaches of the train and remained therein, sleeping in his seat, almost continually, until after the train had reached Alexandria, had stopped there for twenty or twenty-five minutes, and had started west beyond that point; that before the train had reached Alexandria, and at ábout half a mile from that place, the conductor and also the porter notified the passengers in the coach in which Marler was seated that the next station was Alexandria; that the conductor woke Marler, told him that he was reaching Alexandria, and though the latter answered “all right,” he none the less remained upon the train until after it had started; that a short distance west of Alexandria is a stream or bayou known as Bayou Rapides, which the defendant company’s road approaches and crosses upon a bridge and trestle; that the railroad track is crossed a short distance beyond the west end of this trestle by a plantation road, and a little beyond this the track is crossed by that of the H. C. & N. Railroad, which, running out of Alexandria nearly parallel for a time with the Texas Pacific, also crosses Bayou Rapides and then converges towards and meets it as stated; that almost immediately after the train left Alexandria, the conductor started through it to take up tickets, and went into the coach in which Marler was still seated .and sleeping; that waking him he asked him if he -intended going any further than Alexandria; that he replied that he was going to Alexandria; that the conductor told him that the train had left there and offered to take him to Boyce (the next station west) and send him back, but he answered that he wanted to go to Alexandria, and asked where the next stop would be; that he was told that it would be at the Tí. 0. & N. crossing and was asked whether he knew where that place was; to which he replied that he did; that he would rather get off there and walk back, than to go to Boyce; that the train shortly after stopped and Marler got off; that this was between four and half-past four of the morning of Sunday, the 20th of August; and that a short time after five o’clock of that morning he was found, by a farmer named Samuel Ball, lying under the railroad trestle (dangerously injured) about eight-four feet from its west end, and that from this injury he died some days after-wards.

No one saw him fall, and the only testimony in the record bearing directly upon that subject are statements made by Marler to Ball, to S. W. Williams, who was his brother-in-law; to Dr. Simmons, to Judge Blackman, and to T. W. Squires, brought to our knowledge through the testimony of these parties.

The place at which the train stopped, when Marler alighted from it, is one of the disputed points in the ease.

Plaintiff’s attempt was to show that the train stopped so as to place the step of the coach, from which Marler alighted, directly over the trestle, while that of the defendant was to establish that it was some distance west of the west end of the trestle, and that Marler must have walked back to the trestle and attempted to cross it to return to Alexandria.

The testimony of Ball, Williams, Simmons, Blackman and Squires, as to the statements of Marler, went to the jury over objections from defendant, and under bills of exception.

The objections urged were that these declarations were made at a place other than where the accident occurred, and several hours after; that they constituted no part of the res gestae; that they were hearsay and incompetent either as part of the res gestae, or as dying declarations, or for any other purpose.

Plaintiffs maintain that the ruling of the court was correct; that the declarations of the deceased formed part of the res gestae; that to constitute them so it was not necessary that they should have been precisely concurrent with the act charged to have been committed; that it was only necessary that they shoüld spring from it and be made under circumstances which preclude the idea of design.

They refer the court to State vs. Thomas, 30 Ann., 600; Augusta Factory vs. Barnes, 72 Ga., 217; Gillett’s Indirect and Collateral Evidence, Sec. 258; Brownwell vs. Pacific R. R. Co., 47 Mo., 239; 46 Nebraska, 37; Irby vs. Shute, 25 Texas, 203; Ohio & Miss. R. R. Co. vs. Stein, 19 L. R. A., 733 (Ind.); Mitchum vs. State, 11 Ga., 615; Wharton Ev., Sec. 262; Harriman vs. Stowe, 57 Mo., 93; Travellers Ins. Co. vs. Mosby, 75 U. S., Wall., 397, 19 L. Ed.; Hall vs. State, 48 Ga., 607; Chill vs. H. & T. Com., 40 Atl., 1127; Handy vs. Johnson, 5 Md., 463; People vs. Vernon, 35 Cal., 49; 95 Am. Dec., 49; O’Connor vs. Chicago, M. & St. Paul R. R. Co., 27 Minn., 173; 38 Am. Rep., 288; International & G. N. R. vs. Anderson, 82 Texas, 516; Texas Pac. R. R. vs. Robertson, 82 Tex., 657; A. & E. Enc., Vol. 21, pages 101-102; State vs. Garrand, 5 Oregon, 216; S. R. Co. vs. Smith, 4 A. 6 E. E. R. C., 324, and 78 Texas, 421.

The defendant refers the court to State vs. Estoup, 39 Ann., 219; State vs. Melton, 37 Ann., 78; State vs. Williams, 34 Ann., 961; 1 Greenleaf, 14 Ed., Sec. 108; 1 Taylor, Secs. 525-527; Wharton Crim. Ev., 262-264, 691; Vicksburg & Meridian R. R. Co. vs. O’Brien, 119 U. S., 99 (1886); Boston & Albany R. R. Co. vs. Reilly, 158 U. S., 334; National Masonic Accident Association vs. Shryrock, 20 C. C. A. Repts., 3 (73 Fed. Rep., 774); Waldele vs. N. Y. Central R. R. Co., 95 N. Y., 295 (19 Am. & Eng. Cas., 400); Sullivan vs. Oregon R. Co., 23 Am. & Eng. R. R. Cases, 391 (Oregon Sup. Court, 1885); Williams vs. Bowden, 31 Tenn., 232; Savannah and Florida R. R. Co. vs. Holland, 41 Am. & Eng., 196 (Georgia Sup. Court, 1889); Mima-Queen vs. Hepburn, 7 Cranch, 290.

Before passing upon this question, it is well that the declarations themselves, and the circumstances under which they were made, should be stated.

Marler must have fallen from the trestle between four and half-past four in the morning. The first person to see him was Samuel Ball, who was crossing Bayou Rapides on the H. O. & N. trestle, shortly after five o’clock, and was called by the injured man to his assistance. His testimony (referring to his going to Marler when called) was as follows: “The first thing he (Marler) said to me was 'that the train put him off there last night, and he had fallen in the trestle. It was dark and he could not see, and he was almost dead.’ He asked me if I knew Mr. Thorburn? I told him I did. He said one of his clerks was his brother-in-law, and asked me if I would go and tell him to come there quick.” On cross-examination being-asked “what was the first thing he said' when you got to the ifface where he lay? Did you address him first?” he answered: “I asked him what was the matter? He told me that the train stopped and put. him off there, and he said it was dark and 'I could not see and I fell off the trestle, and I am almost dead.’ That was the first thing, and that was about all. He then asked me if I knew Mr. Thorburn. His mind seemed to be perfectly clear when I was talking to him. He gave me as intelligent an account as I think a man could.”

Williams, the brother-in-law of Marler, testified that having been told by Ball that-he had been injured, he went out to see Marler about 1 or 8 o’.clock on Sunday morning. He said he found him lying on the left side of the bridge, about eighty feet from where the track went upon the earth works, and by the edge of the track; that he seemed to be in a kind of stupid condition — seemed to be very badly hurt ¡witness talked with him, only asking him a few questions, how the accident happened; what he said was in response to questions asked him; “that he told witness that he came up from New Orleans and was to get off at Alexandria; and he was asleep when he got to Alexandria, and just as the train was pulling out from Alexandria the conductor woke him up and asked him if he was to get off at Alexandia. He told him 'yes.’ He said that he had his shoes off at the time;-and he put his shoes on, and the conductor asked him if he wanted to get off there, or go to Boyce? He said 'put him off there,’ and he would walk back to town. “He said he walked out and stepped off — it was very dark when he went off — going out in the light blinded him, and he did not know where he was stepping — thought he was stepping on the ground. He said: 'I'walked out and stepped off.’ Being asked whether he had said that Marler was in a semi-unconscious condition when he found him? he answered: “He seemed to be very badly hurt.”

Marler was taken, from the place where he fell to the depot at Alexandria, and Dr. Simmons was sent for to minister to him. He arrived about 11 o’clock on Sunday, and about the same time Judge Blackman and a friend also called to see him. Dr. Simmons testified that Marler was rational when he called on him — he was not talk-alive. He was very calm and deliberate; his mind was in a condition to enable him to describe his case to him as he did; he was somewhat drowsy and stupid, suffering- evidently from the shock of the fall; not sleeping or anything like that. Witness conversed with'him, asked him how this accident happened in order to be able to tell how severe the injury was or what the nature of it was.

Judge Blackman and some other person, whom he did not remember, were present. Marler told him he had come up on the early morning train from New Orleans; that the trainmen failed to put him off at the depot; took him above town and put him off on a trestle; that he stepped off the steps of the train and fell from the steps down, and was there for some time, until passers by happened to find him there.

The following questions were propounded by plaintiff’s counsel to the witness, and answers given as shown below:

Q. He told you, then, doctor, that he was a passenger from New Orleans, bound to Alexandria?

A. Yes, sir.

Q. And that the train carried him beyond his destination?

A. Yes, sir.

Q. Up above town, and the train stopped and put him off on the trestle ?

A. Yes, sir.

Q. Did he tell you, doctor, why he did not get off at Alexandria ?

A. He said he was asleep, and they failed to wake him up, and carried him past the town.

CROSS-EXAMINATION.

Q. Did you first ask him as to how this accident occurred, or did he volunteer the information ?

A. I asked him how it happened, I wanted to know how serious his injuries were.

Q. Were his replies to you characterized by lucidity and clearness ?

A. Yes, sir.

Q. You say be was in perfect possession of bis faculties at the time he made the statements to you?

A. Well, he was enough so to answer the questions 1 put to him,

Q. Did he state to you that he was carried past Alexandria by the train on which he was ?

A. Yes, sir.

Q. That the employees failed to put him off?

A. Yes, sir.

Q. Now, what did he say about the circumstances of his leaving that coach? Did he say he made a step and fell?

A. lie said he stepped directly from the train and went off.

Q. Did he say he stepped directly from the train down, or steiiped on the trestle and then fell?

A. I do not know that; could not say; can not be certain about that. He said, in stepping- off the train, he went down.

Re-DiREOT EXAMINATION.

Q. He may have told you, doctor, that he stepped on the trestle, and then off ?

A. He may have, sir; I did not attach much importance to that.

Q. You were paying no attention to the legal aspect of it?

A. No, sir.

Judge Blackman testified that he had called on Marler at the depot; that he was awake; he asked him about how the accident occurred; in answer, his recollection was, that Marler stated that he left New Orleans on the morning- train, reached Alexandria and was asleep, passed by the depot, did not awake, and that they did not awaken him; when he woke up the conductor asked him if he wanted to go to Boyce? He said “no;” he wanted to get off at Alexandria; that the conductor stopped the train just above Bayou Rapides (witness could not tell where), near the trestle works was witness’ recollection, on it or near it (he could not say positively which), and asked him to get off there. He said he stepped down (witness’ recollection that it was on a sill or something), and stepped off the steps. He took one step and said he went over, went through or fell through, or down by the side of it (witness could not swear positively which). He, witness, remembered distinctly hearing him say he got off on a sill; took a step and went over. He said he was internally injured, and was feeling' pretty badly; he said he was unable to get up; he did not state anything- about being found .there. He said he took this one step. He did not give any further account of his actions, such as getting up and going anywhere after his fall.

On cross-examination he answered that his recollection was that Harler’s statement was given in answer to witness’ questions as to how he had got hurt; that from the way he talked, he seemed to know what he was talking about. Witness did not hear the word “cap” mentioned; his recollection was that Marler said he stepped right on that sill and as the train passed, he took one step and went down or over — just took one step from the sill and went down.

Marler was taken from Alexandria to Forest Hill, a place some twenty miles away from that place, though just where is not-stated. S. W. Squires, a blacksmith, living at Forest Hill, testified that he saw him a few hours after his arrival there, about 5 ojelock in the afternoon on Sunday, and conversed with him.

Witness asked him how the accident happened, and he told him. He told him ho stepped on the end of the tie — that he got on one end of the tie — -took one step and then went on the ground. His mind was perfectly clear when he made these statements. Talked very little about his business, said he was afraid he was going to leave his family in a very bad condition. Witness saw him the same evening. He told witness he thought his internal injuries were serious, and he did not think he would get over it. After 'this he had several conversations with him, and he talked about the accident to him; he frequently • told witness he could not live, he did not think he was going to live, he could not stand it.

As to the accident, Marler told him they stopped the train on the bridge; that he stepped one foot off the step and the other on the tie, and tlv; next step he made he went over. He said he laid there for a time, and didn’t know anything, and when he came to himself he was then helpless, and stayed there from that time until near 8 o’clock. He said a negro came by and he tried to get the negro to assist him, but he wouldn’t do it; he told him that he got on the train at New Orleans, bound for Alexandria; that he was asleep at Alexandria, and they failed to wake him up, and took him past Alexandria; that they stopped the train and put him off on the bridge; that he stepped from-the car on to the tie and that the next step he made was on to the ground; that it was very dark, and he did not know anything, supposed he was stepping on land from the ties.

The general rule of evidence is that testimony must be given on oath hy persons speaking to matters within their own knowledge, and liable to be tested by cross-examination. (Gillett Indirect Evidence, Section 224).

To this rule there are recognized exceptions, but in the application of the same to particular cases, great care, caution and strictness, should be exercised..

Among such recognized exceptions are declarations unsworn to by the parties making them, which fall under the operation of the principles of the res gesiae.

The great difference in the decisions of the courts upon this latter subject malíes it difficult to ascertain and fix with certainty its exact legal scope simply from precedents. Much of the embarrassment and confusion of the law in this matter, resulting from these differing cases, is due, as stated by the Supreme Court of Oregon in Sullivan vs. Oregon, R. Co. (Supreme Court of Oregon, 1886), to the attempts which have been made to stretch the res gestae doctrine to an unreasonable extent in order to suit some supposed meritorious case.

The admissibility of unsworn declarations in evidence, as part of the res gestae, does no.t rest upon .the theory that there is a great probability that they may he true, for though these declarations are frequently made under such circumstances as to entitle them to implicit confidence, yet they do not answer the requirements of the law: that testimony against a party shall he given under the test and sanction of a solemn oath, and that he should have had an opportunity of cross-examination (Wadile vs. New York Central R. R., 95 N. Y., 295).

Were we to permit ourselves to he guided in this matter, simply by the high character of the parties making the declarations, and of those testifying to the fact of such declarations, and to the substance of the same, we would test the “admissibility” of evidence by the credibility of witnesses instead of by fixed rules determinative not only of that particular, but of all other identical cases.

A leading case hearing upon the subject of res gestae is that of Tillson vs. Terwinger (56 N. Y., 273). Folger, J., in that case, said: “To be a part of the res gestae the declarations must he made at the time of the act done, which they are supposed to characterize. They must be calculated to unfold the nature and quality of the acts which they are intended to explain.”

“They must so harmonize with these facts as to form one transaction. There must be a transaction of which'they are considered a part. They must be concomitant with the principal act, and so connected as to be regarded as the result and consequence if co-existing.”

Gillet, in Section 246 of his work, declares that, “particularly, in actions involving injuries to the person, it will be found that the res gestae is so clearly tied down to the principal act that the element of time may be said to control in a large measure.”

The Supreme Court of Tennessee, in Williams vs. Bowden (1 Swan, 282), declared: “The declarations are evidence because they are a part of the thing doing; therefore when the thing shall have been done and concluded declarations then made are not evidence.”

In addition to the rule stated of the necessity of the declarations beiiig concomitant in time with the principal act it has been stated to be an important though not necessarily a controlling circumstance connected with the declarations that they should have been made at the place of occurrence of the principal act (Prideaux vs. City of Mineral Point, 48 Wis., 513; Mutcha vs. Pierce, 49 Wis., 231). The time of the occurrence of the principal act is sometimes, by reason of some special circumstance, extended forward so as to make it coincident and connected with subsequent declarations touching- the same by a constructive continuity of time, as for instance when the party making the declaration' having' become unconscious at the very moment of the occurrence of the principal act, the declarations are made by him at the very moment of his regaining consciousness. Under such conditions the act and the declarations are sometimes held to be simultaneous by “relation,” the declarations being spontaneous.

On the same principle an act occurring' at a particular time has been permitted, sometimes, to be connected with after declarations relative thereto as being of successive acts and constituting one single continuing transaction.

In Mayes vs. State, 63 Miss., 329, the court said: “That hearsay testimony can not be given; is universally admitted by ythe courts, which have from time to time been called on to determine whether statements of this character are competent, and they ha-te, without exception, declared, that when the statement assumes the character of a narrative of a past transaction it is incompetent.”

“But in many cases what were manifestly completed and finished acts have been by a sort of construction treated as incomplete and unfinished, and the statement thus held to be a verbal act incorporated with and a part of the thing- done. * * * It is not enough that the statement will throw light upon the transaction under investigation, or that it was made so soon after the occurrence as to exclude the presumption that it has been fabricated, oa- that it was made under such circumstances as to compel the conviction of its truth. The true inquiry, according to all the writers, is whether the declaration is a verbal act illustrating, explaining or interpreting other parts of the transaction, of which it is itself a part, or is merely a history or part of a history of a complete past affair. In the one case it is competent, in the other it is not. We are not to be understood as attempting to lay down any rule for what, under all circumstances, is the limit of the existence of the principal fact, which may be explained by contemporaneous declarations.”

“In some cases the res gestae may extend over weeks or months, in others they are limited to hours or to minutes, or to seconds.”

In Bradley vs. State, 22 Texas, App., 273, it was said the test of res gestae was: “Were the facts talking through the party, or the party talking about the facts ?”

In Gillett’s Indirect Collateral Evidence, Section 292, the author says that he had been at some pains to sho.w in the preceding chapters of his book that the res gestae did not rest upon the low plane of hearsay evidence, because of its connection with and consequent credit from the principal fact. That, reasoning from that postulate, it would seem to be an incontrovertible proposition that the fact under inquiry must always be established by direct evidence, except possibly -in that class of subjective inquiries where the ascertainment of mental condition is the end sought. (Citing White vs. Rayburn, 11 Oregon, 250).

The facts in Waldele vs. New York Central R. R., 95 N. Y., 274, were that about midnight a freight train passed a street crossing on defendant’s road, followed fifty feet distant by an engine going backward. *'

Shortly after, plaintiff’s intestate was found near the track fatally wounded. He was removed to the sidewalk, and afterwards to a hospital, where he died three hours after. About thirty minutes after the accident, the deceased made a statement, as to the cause of his injury, to his brother, who was offered as a witness to prove it.

The court said: “The res geslae, generally speaking, was the accident. These declarations were no part of that; were not made at the same time, nor so nearly contemporaneously with it as to characterize it, or throw any light upon it. They are narrative, giving an account of a transaction, not partly past, but wholly past and completed. They depend wholly upon the accuracy and reliability of the deceased and the veracity of the witness who testified to them. Nothing was then transpiring or evident to any witness which could confirm the declaration, or by which, upon cross-examination of the witness testifying, or by examination of other witnesses, the truth of the declaration could be tested.”

In Sullivan vs. Oregon R. Co. (Oregon Sup. Court, 1886), plaintiff claimed to have been ejected by a conductor from a moving train. Witnesses were offered to prove his declarations, made two or three minutes after the train had passed, to the effect that the conductor had pushed him off. The court said: “The affair, whatever it was, occurred on board the train of cars. Everything that transpired between the conductor and the respondent took place there and ended there fully and completely when he was pushed off .or jumped off. When the respondent went from the ears to the ground, and the train had passed on, the transaction between him and the conductor was as effectually terminated as it was a month later.”

“IIow can this statement be claimed to be a part of the transaction between the respondent and the conductor, when the affair was at an end and the latter party probably a mile away at the time? I am unable to endorse such view.”

“The statement of the respondent, at the time referred to, as to how he came off the cars is as undoubtedly hearsay evidence as any narration of the affair he has given since that time.”

In Savannah & Florida R. R. Co. vs. Holland (Georgia Sup. Court, 1889), the plaintiff being a passenger on defendant’s train was carried past his station. The question in the case was, whether he alighted safely and received his injury afterwards by falling through a trestle on his way back to the station," or whether he fell through the trestle by being forced, or pushed off by the conductor. Certain declarations of the plaintiff as to his manner of leaving the train were allowed to be introduced, which, were made after the plaintiff had bound up his broken limb and cried for help to a person who came to his assistance.

The court said: “It is manifest that the act by which the plaintiff was injured had completely terminated before his declarations were made, and that they were no accompaniment of the same. Were they so connected with it in time as to be free from all device or after thought ?

“lie had turned his attention from the act to measures looking to his own safety and comfort. He had certainly occupied his thoughts with something besides the facts and circumstances to which his declarations related. He had full opportunity (although no doubt under great suffering) to devise á story in his own interest, and there is no reason for concluding' that he did not have capacity to take advantage of his opportunity. He was exposed to the temptation of fabricating a story if he needed the aid of invention, and the exposure was under circumstances calculated to excite suspicion that his statement was, or might have been, referable to deliberation and afterthought, rather than to spontaneous or instinctive utterance. This does not imply that he did fabricate, for he might not have done so. Truth may have been with him and invention unnecessary. But as, his declarations did not accompany the act, they had to be so nearly connected therewith in time as to be free from all suspicions of device or afterthought (Hall vs. State, 48 Ga., 607). If subject to suspicions at all, they were not admissible, although in the particular case the suspicion might be erroneous.”

In a Michigan case (Merkle, Admr. vs. Township of Bennington, 58 Mich, 156) where the plaintiff narrated the circumstances of his injury after he was removed to a house twenty or thirty rods away from the place of accident, Cooley, J., said: “The affair was all over when Merkle was taken to Mrs. Cook’s; he had been removed from the scene of the injury; the surroundings were all changed; the time for exclamation or outcry was past, and nothing for the present remained to be done, but to care for the wounded man, leaving investigation into the cause of injury to some more favorable time in the future. The statements n¿ade by Merkle, to his physician, were proper enough as between man and man, but they had no legal va,lue and were, therefore, impropertly admitted.”

Counsel of defendant, in their brief, very correctly say: “The res gestae here was the manner and circumstances under which, and the place where, the deceased left the train. His declarations relative thereto were made after the transaction was an accomplished fact; after the conductor and his train were miles away, and in the presence of no person who was an actor in the transaction; they were made in every case not spontaneous and instinctively under stress of the res gestae, but deliberately (though, doubtless, under great suffering), and in narrative form in response to inquiries how the accident had happened, and after the deceased had turned his attention to measures of safety, evidenced by his calling for help. Furthermore, three of the statements which were most important and explicit were made at places other than the place of accident.”

The declarations of Marler, to the physician, are specially pressed upon us as being sustained by authority, but we do not think they stand on any better ground than the others. It is possible that the statement made by Marler to Dr. Simmons, that he had fallen from the trestle, might have been properly elicited from the latter as re »i ipsam, as furnishing part of the data upon which the physician reached a conclusion as to the nature and character of the injuries received, but the injured man was not called upon to state to him for that purpose, nor was it at all relevant for the physician to know anything about the facts and circumstances under which he left the cars, and particularly the place where he left the cars (for this latter fact was the principal fact involved in the case), and those under which he went upon the trestle.

Those recitals would have been very important and pertinent in a statement to an attorney, but not to a physician, and the physician in this case very frankly states that he did not pay much attention to them; he was considering the case from a medical, and not a legal, aspect.

Gillett, in Section 205 of the work already quoted from, says: “Statements as to how the injury was received, whether made to a professional man or not, are self-serving in their character, and can never be shown in evidence in support of the party claiming them. Such declarations, at the best, are hearsay.” We do not think that the statements made by Marler, at Forest Hill, to Squires, stand on a different plane from those made to the other parties, by reason of the fact that at the time they were made he might have been conscious of approaching- death. They were not sought to be introduced as dying-declarations, and they would not have been admissible as such had they been so offered.

The circumstances under which dying declarations are made, with a view to testimony in criminal cases, differ greatly from those where they are made with reference to future civil proceedings for damages occasioned by the injury. In the one case, the party making the declaration has no personal interest in making a false statement, and would be actuated in doing so only by hatred or malice, while in the other, relief for the family he is leaving behind him might furnish a strong motive for giving a wrong version of the facts of the occurrence.

What we are here saying has no reference whatever to the facts of this particular case. This matter has to be regulated by general rules, not to be departed from in individual cases. The fact that declarations should have been made under a belief of the party's approaching death, merely adds to the probability of their being truthful, and we have seen that the doctrine of res gestae is not based on that fact.

The court erred in permitting the declarations of Marler, made to Ball, to Williams, to Dr. Simmons, to Blackman and to Squires, to be received in evidence, and we can not consider them.

Eliminating these declarations, plaintiff’s demand rests upon the testimony of Nelson Ball and Theodore Ball. Nelson Ball’s testimony, as he himself declared was purely a guess as to the place where the train stopped and Marler alighted from it. Theodore Ball is a boy of about twelve years of age. He is evidently very bright, frank, truthful and thoroughly sincere. The weakness of his testimony results from the fact that viewing things at night, and from the distance, which he did, it was utterly impossible for him to state with the accuracy and certainty, which the occasion called for, the position of defendants’ train at the time it stopped and Marler left it. He was sleeping in a house over five hundred yards from the place at which he located the train as stopping, and judged of its position in the darkness of the night simply by the lights upon it. Opposed to his ideas as to where the train stopped, is the positive testimony of D’Hemecourt, the conductor; Landry, the porter; Beeler, the fireman; Covington, the engineer, and Virges, a newsboy, who were all on the train directly at the spot, and their testimony is corroborated by that of Park, a passenger, seated in the same coach which Marler left.

These parties, though they differ from each other in some matters not material, all concur in showing that Marler stepped upon firm ground when he left the car; that the train stopped but once between Alexandria and Boyce, and that this was near the Houston Central crossing, and though probably somewhat further to the east from that crossing than the train usually stopped (it haying stopped near the plantation road referred to in the testimony), yet sufficiently fal-to the west to cause its rear end to clear the west end of the trestle by some distance.

The length which this opinion has reached precludes our giving the testimony in full: suffice it to say that unless these witnesses were unworthy of belief, it has been affirmatively shown that Marler did not leave the car at* or upon the trestle, but some distance to the west of it.

There was no attempt on the part of the plaintiff to impeach the credibility of any of the witnesses other than the porter, Landry, and as to him we find nothing which would warrant our supposing him to be untruthful.

The allegations of plaintiff’s petition, that the conductor ordered Marler to alight at 'the point he did, would convey the idea that he was ejected from the car.

This is utterly unwarranted. He elected to get off at the first stop made by the train after it left Alexandria instead of accepting the offer to be taken to Boyce and back without expense.

He was told where the train would stop — said he knew the place and that he would walk back to Alexandria.

There does not seem to have been the slightest friction between the conductor and Marler, or any thought at any time of ejecting the latter.

It is claimed in plaintiff’s brief that Marler was evidently suffering from mental or physical disability on the train, and when he left it, and that even if he got off at the Houston Road crossing, defendant would still be liable in damages for his death in not having warned him, when he left the car, that he would have to cross a dangerous trestle in returning to Alexandria.

It is not alleged in the petition that Marler was suffering from any mental or physical disability on the train, and there is nothing' in the evidence tending in that direction beyond the fact of his sleeping on the train.

The case was tried upon the pleadings and on the theory that the train was stopped over the trestle, and Marler fell through it directly on stepping- from the step of the car.

The evidence was taken on both sides with reference to that issue. With Marler’s declarations excluded there was no evidence in the case which could have warranted the jury’s verdict. We have no alternative but to set the verdict aside and annul the judgment. For the reasons assigned, it is hereby ordered, adjudged and decreed, that the verdict of the jury be set aside, and that the judgment of the District Court, appealed from, be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejepted and her suit dismissed.

Rehearing refused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,965.
    Succession of Mrs. Louisa J. Bidwell.
    Syllabus.
    Ad attack made upon a will on the ground of incapacity of the legatees to receive the benefit of bequests therein made because they are the wife and children of the doctor who professionally attended the testatrix during the sickness of which she died and are therefore reputed to have been interposed for him, can not be sustained in the absence of satisfactory evidence being administered that the same was made during that sickness.
    APPEAL from the Civil District Court, Parish of Orleans — Monroe, J.

      Edgar M. Calm and E. J. Moral for Plaintiffs, Appelants.

      James McQonnel, Jr., for Defendants, Appellees.
   The opinion of the court was delivered by

Watkins, J.

This action was brought by certain persons who allege themselves to be the only collateral relations and legal heirs of the deceased, to annul her last will and testament, on the ground that the heirs whom she instituted were legally incapacitated to take the he-, quests therein provided.

The alleged incapacity of the instituted heirs is based upon the precepts of the Civil Code, notwithstand.ng the determination of the issae involved, rests, exclusively, upon a question of fact.

On the trial of the cause, there was judgment rendered rejecting the plaintiffs'’ demands, and they have appealed.

On the 4th oí June, 1890, Mrs. Louisa J. Bidwell made her last will, nuncupative in form and evidenced same by a public act; and she therein bequeathed to Mrs. Louise Moore Pratt, one pair of solitaire diamond earrings, and the residue of her property to the children of George II. Pratt and Mary Louise Moore Pratt, his wife, and appointed George Iv. Pratt testamentary executor, and dispensed him from giving bond. The will is attacked by Isabella Pamelia Babcock, and Agnes Emily Babcock, who allege themselves to be nieces and nearest of kin of the deceased testatrix, on the ground that Dr. George K. Pratt, who is named as executor, is the husband of one of the legatees, and the father of the other legatees; that he was and is a doctor of physic or medicine, and as such, attended the deceased, in his said professional capacity, during the sickness of which she died; that the will was made during the sickness of which she died, and his wife and children are incapable of receiving any bequest therein, as the law presumes that they were interposed for their husband and father, and that the legacies in their favor are, therefore, absolutely null, and should be so decreed; and that they should be recognized as her heirs at law, and as such, placed in possession of her estate.

It is conceded that Dr. George K. Pratt is and was; at the date of the execution of the will of the deceased, and at the date of her death, a practicing physician, and in that capacity, professionally attended her at those dates, and that he so attended her at various times intermediately between those dates.

It is further conceded, that Dr. George K. Pratt sustains the relation of husband to one of the legatees, and that of father to the other legatees; and also, that the plaintiffs are nieces of the deceased, and her nearest of kin, and her legal heirs if her will should be avoided.

The incapacity of the legatees is claimed to arise under the following provision of law, viz:

“Doctors of pbysic, or surgeons, who have professionally attended a “ person during the sickness of which he dies, cannot receive any ben- “ efit from donations inter vivos or mortis causa, made in their favor “ by the sick person during that sickness, etc.” R. C. C., 1489.

“Every disposition made in favor of a person incapable of receiving, “ shall be null and void, whether it be disguised under the form of an “ onerous contract' or be made under the name of persons interposed.

“The father and mother, the children and descendants, and the hus“band of the wife, shall be reputed persons interposed.” R. 0. 0., 1491.

In view of the concessions that are made by the defendants’ counsel, the applicability of the foregoing provisions of the Code is so clear and undoubted, that there is no controversy on that score; and this being the case, the only open question open for discussion is one of fact, whether the decedent’s will was made during the sickness of which she died.

The will having been made on the 4th of June, 1890, and the decedent’s death having occurred on the 16th of May, 1897, and several years having intervened between those two events, the contention of the plaintiffs is, that for a great number of years previous to the making of the will, and continuously thereafter, up to the time of her death, she suffered from heart disease, which resulted in her death, and consequently she made the same during the sickness of which she died; whilst that of the defendants is, that she was taken sick on the 17th of March, 1897, and her sickness continued until the 16th of May following, when she died — the sickness of which she died having been certified by the attending physician to have been phlebitis and heart disease.

Consequently, the propositions to which our attention must be directed are (1) whether Mrs. Bidwell was afflicted with heart disease during the period of time mentioned, and, if so, to what extent; (2) whether heart disease is, speaking scientifically, a predisposing' cause of phlebitis, and if so, whether the evidence discloses that, as a matter of fact, it originated the attack of which the attending physician certified she died.

Wo think it may be safely assumed, from the general trend of the testimony of lay witnesses, that Mrs. Bidwell was a sufferer from a heart trouble of some kind for many years prior to the execution of her will, and for many years thereafter, and up to the date of her death; and that there is none of it which contradicts the statement of the attending physician that her death resulted from phlebitis, and which, in his opinion, was superinduced by a relapse from an attack of the grippe — same extending1 to the heart and producing endo-carditis.

Our learned brother of the district court, in assigning his reasons for judgment, made the following- statement, viz:

“It is established, beyond doubt, that the deceased had some affection “ of the heart before and after the date of making the will, and that “ she continued to be so affected up to within twelve months of her “ death, when Dr. Pratt called the attention of Dr. Washington to the “ abnormal action of her heart; and I think it may fairly be deduced “ from the testimony, that the same abnormal condition existed at the “ time of her death.”

But, notwithstanding this expression of opinion predicated upon the testimony, he was convinced that sufficient evidence had not been adduced to show that the heart affection of the deceased produced the phlebitis of which it is claimed she died; or, in other words, it was not proven, to the satisfaction of the judge, to have been the predisposing cause thereof.

With reference to the decedent’s heart affection, there were various witnesses interrogated at the trial — non-professional persons — and they related a great number and variety of details and circumstances tending to show that she had been, for a number of years, afflicted with heart affection of some kind.

One of those witnesses states that she complained of heart-failure frequently, and that on those occasions she always summoned Dr. Pratt, and he attended her professionally. That on these occasions, she told the witness that the doctor said she had “a heart trouble.”

Another witness states that in 1881, and subsequently, she frequently complained of having “heart disease”; and that on those occasions she had Dr. Pratt summoned.

That in 1891 she had a sudden and severe' attack of heart disease for which Dr. Pratt treated her.

Another witness relates similar occurrences as having taken place in 1890, -the year in which she made the will; another in 1895; and another as long ago as 1878.

Another witness states that for several years previous to her death, he knew her very intimately, and that she frequently complained of her heart, and told him that she had heart disease. That Dr. Pratt had informed her that “she might go off like a flash.” That on several occasions he went to see Dr. Pratt, at her request, and that he administered medicine to her for that complaint, in his presence. That on one of these occasions Dr. Pratt said that Mrs. Bidwell had been afflicted with heart disease for many years.

That, on the 10th of May, 1897, one week previous to her death, he went to Dr. Pratt, at the request of the deceased, to tell him that she complained of her heart, and wanted something- to relieve her of it. He states that she eonqplained of her heart troubling her up to the time of her death; and his statement is corroborated by another witness who waited upon the deceased during the last two weeks of her Kfe.

One practitioner of medicine gave his testimony on behalf of the plaintiffs, and his statement is, that he was called to see Mrs. Bidwell professionally, during the time she resided at Pass Christian, Mississippi, in the latter part of the year 1892, and that upon an examination he ascertained that she had some heart trouble. That on a subsequent occasion he made an examination of her heart with a stethoscope, and found her heart beat irregular, and an intermittency in the pulse-beat, and some regurgitation of the blood; that is to say the “valves of “ her heart did not open and close properly — the doors of the ventricle “ of the heart, the valves of the heart, in the left side of the .heart.”

Ho gave it as his opinion that it was an old chronic trouble of longstanding. He states that the deceased had similar attacks in 1894 and 1895, the effect of which was a complete prostration and confinement to bed; and that “he used nitro-glycerine, or something like that, to relieve her.” That these attacks were “serious, even dangerous”; but when tided over “the patient would get along very well until another attack came on. That those attacks were sudden, but passed away rapidly.”

That in his opinion, her disease was a permanent and incurable one; and feeling that he could not cure her, he recommended her to see a heart specialist.

Yet, there were several witnesses who testified, that for several years previous to her death, the deceased appeared to be active and vigorous, and in apparently good health, and gave considerable attention to her private affairs, and matters of business.

Subsequent to liei* husband’s death, decedent was the owner of two theatres, in the city of New Orleans, over which she had the personal care and superintendence; and having subsequently leased them, she removed her residence to Pass Christian, Mississippi, on the shore of the Gulf of Mexico, where she had previously purchased a house; and, while still looking after business interests in New Orleans, she spent her time principally at her home on the Gulf shore.

Our learned brother of the lower court made the following observations on this subject, viz:

“It appears that she led a very active life during these years pre- “ ceding her death. Aside from the trips made to the North in con- “ nectiou with her business, she went once by rail to the Pacific coast, “ and having changed her mind after arriving there, she came almost “ immediately back.

“Several years before her death, she purchased a schooner yacht “which she kept constantly in commission upon the coast of Pass “ Christian, and upon which she spent a great deal of her time, day “ and night, indulging in sailing and fishing expeditions in the adjacent waters and to the neighboring islands and bays. 'She was, “ also, in the habit of rowing and swimming, her favorite method of “ entering the water being to plunge in head foremost.

“She went fishing in the bayou in the rear of Pass Christian, and “ whether from rain or from standing in the water (while) fishing, “ she would get wet, and she remained so with impunity. She worked “ in her garden and about her house, and was known to have moved “ trunks and other heavy objects, and generally to conduct herself as a “ robust and healthy woman; and during these years, certainly for “ four or five years before her death, she had little occasion for the “ services of Dr. Pratt; though, no doubt, if she had, at any time, felt “ herself seriously ill, he would have been called in consultation with “ the attending physician, as was actually the case.”

Our examination of the record, confirms the correctness of this statement.

And there are some additional examples furnished by the witnesses of the robustness and vigor of decedent’s health during the years that preceded her death, and subsequent to the period of time to which the medical witness confined his testimony.

On one occasion she made a trip on her pleasure schooner to a place called the “Keys”, which is situated in the open gulf beyond the Mississippi Sound, and while fishing, waded out in the surf, and shared the sport with her male companions. On another occasion, she sailed her own yacht in a regatta. She repeatedly rode on horseback, and rowed a skiff.

It appears that the decedent often engaged in such sports in the mere pursuit of pleasure, and endured hardships such as were calculated to tax the constitution of the hardiest male; and to all appearances, without sustaining the slightest apparent inconvenience or distress, or causing any trouble with her heart.

It is a conspicuous fact, that all the witnesses who testified with reference to the decedent’s complaint of heart trouble, affirm that she was in apparent good health, and that they gained their knowledge of her situation from her own statements, exclusively.

Aside from the testimony of the plaintiffs’ medical witness relating the result of his examination of the decedent’s heart on a single occasion in 1892, there is nothing in the evidence to show “the character of this pre-existing heart complaint.”

The testimony shows, that the decedent was taken ill on the 17th of March, 1897, and a physician who resided at Pass Christian, Mississippi, was summoned, and that she died at her residence' in that town on the 16th of May, following; and that subsequently to her death he prepared and signed a death certificate to be used by the undertaker in conveying her remains to New Orleans for interment, in which he stated the cause of her death as “phlebitis and heart disease.”

As a witness the physician stated that he attended the deceased professionally during the intervening period of two months, and that the cause of her death was phlebitis and endocarditis — the disease having been the extension of the phlebitis to the heart.

He thus explains the term “heart disease” which he employed in the death certificate. That phlebitis is an inflammation of the veins, and endocarditis is an inflammation of the lining membrane of the heart. That, primarily, phlebitis has nothing to do with the heart, but by an extension of the inflammation through the veins to the heart, an inflammation of the heart is produced, and that is denominated endo-carditis..

From this explanation of the death certificate it appears, that the heart disease mentioned in the certificate, was not intended to represent the pre-existing chronic valvular trouble of the decedent, which the plaintiffs’ medical witness describes, but the endocarditis which the attending physician states to have resulted from the phlebitis with which she was first attacked, and which was, in his opinion, the cause of her death.

That interpretation, it would seem, might fairly be given to the phrase “phlebitis and heart disease”, thus indicating phlebitis as the primary cause, and heart disease as the result or secondary cause of death.

He says the patient was first attacked with the grippe, and he was called to treat that complaint. That, after three or four days of illness, she left her bed and went about the house, and subsequently relapsed; and some days subsequent to the relapse, phlebitis set in. That this may have been a ’week or ten days after the relapse. That the heart disease or resulting endocarditis, which was the -final cause of death, continued five or six days; but the witness states and emphasizes the statement, “that the disease she died of was due entirely to phlebitis.”

The description given by the witness, of the disease of which the decedent died, and of the course it pursued, may be thus summarized:

The phlebitis first appeared in the patient’s left foot and then extended up the left leg to the pelvic cavity. It next appeared in the right foot and extended up that leg. It went, next, to the lungs, and oedema of the lungs resulted.

It next appeared in the right arm and extended up that arm into the jugular vein, and through that vein into the heart.

That was the commencement of the endocarditis of which she died.

The witness positively asserts that the decedent did not die of organic heart disease, but of “acute heart disease.” That he made a careful examination of her heart with a stethoscope, several days previous to her death and subsequent to the development of phlebitis, and thus made the discovery that her heart had become affected; but that the patient never complained of any heart -trouble during her sickness.

He never had occasion to make an examination of the decedent’s heart prior to the date of his having been called to attend her as he has described; but that, at the suggestion of Dr. Pratt, he did, on one occasion, some time previously, make a casual examination of her heart, but without the use of an instrument, and was unable to formulate any opinion on the subject, and did not express any at that time.

lie expressed the opinion that a pre-existing heart trouble is-not, necessarily, a predisposing' cause for the development of phlebitis, nor does it prevent the development of that disease.

That i;no previous heart trouble had anything to do with the pa- “ tient’s death, but that it was entirely an acute trouble, and caused by- a relapse of the grippe.” That he traced the phlebitis from the etremities directly to the heart; that “he could almost see it moving' with the eye — the extension of the inflammation.”

The only positive testimony that the record discloses, that tends in the slightest degree to weaken the force of that of the attending physician, is that of the plaintiffs’ medical witness whose evidence has been referred to, and which is, necessarily, hypothetical and conjectural, in part. Having been shown the various prescriptions that were made by the attending physician during the course of the decedent’s illness, the witness gave it as his opinion, upon having made an exam intaion .of them, that many of the items of physic prescribed were such as would have a tendency to support the heart; that many of them related to heart trouble and not to inflammation. He then specified many of the ingredients as having a tendency to support the heart — the purpose of this testimony evidently being to show that the attending physician had, in fact, prescribed remedies for a chronic heart affection, in opposition to his evidence to the contrary.

Upon making an examination of the prescriptions, we find on the first one, which bears the number 16,433, and the date March 17th, 1897, when the attending physician was first called to see the deceased, tincture of lobelia, alone; and the witness states that same is usually prescribed for spasms, or spasmodic attacks.

On the second one, which bears the number 16,453, and the date March 20th, 1897, are calomel titrates, which he says is a medicine used for the liver.

On the third one, which bears the number 16,482, and date March 25th, 1897, are found quinine salacyl, lactophine and eactina pellets, which the witness says were for the support of the heart, and pneu-ralg'ic pains through the muscles, and also, to counteract uric acid.

Those of March 27th, 29th and 30th, 1897, showed repetitions of the foregoing ingredients.

But those of April 5th, 1897 — bearing the numbers 16,567 and 16,-569 — for the first time make mention of nitro-’glycerine tablets, and tincture of iodine — the former for internal use, one every six hours, and the latter for external application as directed — and the witness admits “that the tincture of iodine and glycerine were intended as a local application for phlebitis or erysipelas, or inflammation — to overcome inflammation.” '

These several prescriptions relate to the first fourteen days of the decedent’s sickness; and it is manifest that on the last named date, the 5th of April, 1897, the disease of the patient took a decidedly unfavorable turn, inasmuch as the attending physician made a radical change in his treatment on that date, and had occasion, for the first time, to call twice on the same day, whereas his previous visits had been made only once in three days.

Subsequently, he prescribed for her, on the 7th of April, twice; on the 8th, once; on the 10th, twice; and on the 12th, twice — all of the prescriptions of those dates having been practically a repetition of those of the 5th.

„ On the 20th he prescribed twice; on the 27th twice; and on the 10th of May he prescribed for the last time — only a day or two preceding the patient’s death.

Instead of supporting the theory announced by the plaintiffs’ medical witness, the proof furnished by the prescriptions, most circumstantially corroborate the theory and evidence of the attending physician, to the effect that the preliminary attack of the testatrix was one of grippe, and was not by him considered or treated as a serious or dangerous ease; but when the phlebitis first manifested itself, on the 5th of April — judging from the character of his two prescriptions of that date — some days subsequent to her relapse from the grippe, his anxiety was evidently aroused at once, and a change made in her treatment; and same was, thereafter, unremittingly continued to the time of her death.

There is nothing apparent from an examination of the prescriptions, indicating that the attending physician treated the deceased for a chronic heart trouble, and the plaintiffs’ medical witness fails to disclose that such was the case, judging from the uses and purposes to which the physic prescribed is ordinarily applied.

That witness frankly admitted that, in the course of his practice, he had never treated a case of phlebitis, and, consequently, could not give anything other than technical information in regard to it; and the attending physician was not questioned in reference to the prescriptions, or the objects he sought to accomplish by their administration.

II ence, our investigation of this part of the case, has thrown hut little additional light upon the question at issue.

But, outside of the domain of fact with regard to the disease decedent was treated for, and of which the attending physician believed she died, the question still unsolved, and to which we must devote attention is, whether phlebitis is an independent disease, capable of producing death, or is a disease propagated or stimulated by some other disease from which death ensues as a predisposing cause. For if phlebitis is not an independent disease, but one that is produced by some other predisposing cause, then great weight and importance must necessarily attach to the testimony in reference to the decedent’s chronic heart trouble, as she undoubtedly died of heart disease, either acute or chronic.

And the determination of that question must, of necessity, depend upon the opinions of medical scientists, whose experience and learning, justly entitle same to exceptional consideration.

On.the trial there were interrogated, four of the most celebrated and widely known -medical men of the city of New Orleans, who expressed their opinions on the issue involved, and we have briefly analyzed their testimony.

One of these stated, that anything that may excite inflammation of a vein may develop phlebitis; but there are other causes, such as infectious diseases, or micro-organisms, and toxic agents, such as gout- or rheumatism.

The following interrogatory and response are quite pertinent, viz: — •

“Q. — Is phlebitis dependent for its'origin upon any pre-existing heart trouble, or heart disease ?

“A. — Not at all necessary; not at all necessary, by any means. It is an independent affliction. I mean to say not át all associated with it.”

I-Iis statement is, that phlebitis is confined to the venous system through which the blood flows constantly to the heart, and is not found in the arterial system through which the blood flows constantly from the heart. “So that in thrombus and phlebitis, any detached clots would be carried by that venous current in the direction of the heart — towards the heart.”

He explained the great variety of ways in which phlebitis produces death, and said:

“So we have a great many causes of death from phlebitis.”

When the phlebitis, or inflammation of the veins extends into the heart, it is called endocarditis — b,ut it is merely an extension of the inflammation, of the same inflammation from the veins into the heart. That phlebitis is an inflammation of the lining- membrane of the veins, and endocarditis is an inflammation of the lining’ membranes of the heart.

It is manifest that his statements are in exact accord with the opinion expressed by the attending physician of the deceased.

The following extract from the testimony of another of the medical experts, is much to the same effect, viz:

“Q. — What is the cause of phlebitis ? Does it result from heart disease, or anything of that kind, fundamental, or otherwise?

“A. — 1 would say that I look upon phlebitis generally, as caused in ninety-nine out of a hundred cases, by living organisms. That must be one of the chief causes.”

He positively affirms, that during the course of a practice of thirty years, he “can not recollect any case in which phlebitis was caused by heart disease.”

Another of the experts expresses the opinion, after enumerating many of the causes which produce phlebitis, that it is “sometimes “ brought about by chronic heart trouble — the sluggishness of' the “ circulation; the circulation gets so sluggish from the chronic heart •“ trouble, that the veins dilate, and then there seems to be a lowering “ of the whole system that appears to be a cause of phlebitis.”

The fourth expert puts the proposition thus: that an organic lesion of the heart would affect the character and duration of phlebitis, and tend to aggravate it; and in case of death, he was of opinion, that “the heart trouble, has somewhat contributed to it.”

It thus appears that all of the experts agree, that phlebitis is an independent disease; two of them affirm that it is not at all associated with chronic heart disease; one of them, that it is sometimes brought about by chronic heart trouble and resulting sluggishness of the circulation; and the fourth that an organic heart trouble would affect the charade«• and duration of phlebitis and tend to aggravate it.

The substance and purport of this expert testimony supports the opinion of the attending physician in every material respect, and affirms the correctness of his diagnosis of the decedent’s disease, and of the treatment he prescribed.

One of the experts made the statement that there is what is termed an idiopathic form of phlebitis, the cause of which cannot be easily recognized; and that there is another type known as metastatic phlebitis, in which an inflammation of the veins occurs “all at oncethat is to say, it jumps from one part of the person to another part. That it acts somewhat on the principle of rheumatism, that is to say an inflammation will appear in one knee joint, and “all at once it goes over to the elbow joint.”

By making a comparison-of this peculiarity of phlebitis, with the description given by the attending physician of the disease with which the decedent was afflicted, we find a striking parallel between them; and this fact inclines us to the opinion that it proceeded in this way rather than by having- “spread by continuity of surface.”

But the testimony of plaintiffs’ medical witness is to the effect that the valves of the decedent’s heart did not open and close properly; that is to say, “the doors of the ventricle of the heart — the valves of the heart on the left side of the heart”- — did not open and close properly.

By this is meant, that the arterial, or mitral valve on the left side of the heart; the “auricular ventrical valve, on the left side of the heart”, did not properly perform its legitimate functions, for the reason that they did not open and close properly.

That this was the result of an examination he made of the deceased in 1892, and that he found her heart in a similar situation when he made a second examination, aboiit two years afterward.

Accepting- his theory as correct, it does not seem possible to discover any connection between the chronic, valvular trouble of the decedent’s left heart in 1892, and 1894, and the acute endocarditis of which she died in 1897.

This medical witness does not state that this valvular heart trouble was accompanied by any inflammation of the lining membranes of her heart, and it could not, consequently, have actively assisted in producing the endocarditis of which she died; yet it might have been possible for the action of the valves of her heart to have been stimulated by the administration of nitro-glycerine’ as a means of giving it immediate relief from the excess of blood it contained, by its explosive force.

And this suggestion finds sanction in the prescriptions of the attending physician, at the particular stage of the sickness of the deceased when phlebitis first made its appearance, possibly as a preparatory or initial measure of protection, he not then being able to foresee the ultimate result.

A careful review and analysis of. the evidence have brought us to the conclusion (1) that phlebitis is an independent disease capable of producing death; (2) that while heart disease may be, in a remote degree, a predisposing cause of phlebitis,' its only effect relates to the character and duration of the disease which is superinduced by some other cause; (3) that the chronic valvular heart trouble of the deceased did not produce the phlebitis of which she died, or affect its character or duration appreciably; (4) that the decedent’s death in May, 1897, was immediately and directly caused by phlebitis which ensued, or was the sequel of la grippe, with which she was first afflicted in March, 1897; (5) and that, consequently, the chronic heart disease of which she had complained for many years previous to her death, was not the sickness of which she died, and hence the claims of the plaintiffs are not well founded.

This was the conclusion at which our learned brother of the lower court arrived, .and we concur in his appreciation of the evidence.

Judgment affirmed.

MoNroe, J., recused.

Rehearing refused.


author: BlaNCHard, J.

text:
    No. 13,345.
    Z. W. Cannon vs. The Vaughn Lumber Company et als.
    Syllabus.
    1. Where a debtor takes up one of a series of notes in the course of commercial business between the parties, by credits appearing in his favor on account of consignments made to the creditor and without reference to the indebtedness as a whole and without intention of affecting his previously reserved right to the correction of errors in the account, to close which the notes were given, it cannot be successfully urged against him that this is such an acknowledgement of the entire indebtedness as represented by the notes as precludes later inquiry into the correctness of items on the original account.
    2. A party who, with the intention of buying for himself, negotiates and effects a purchase of timber, but causes the bill of sale therefor to be executed to another from whom he obtains the funds with which to pay for the timber, can not afterwards be heard to shift his position, assert the timber to be that of the creditor and to claim that he (the debtor) owes only for as much thereof as he has actually used.
    APPEAL from the Ninth Judicial District, Parish of De Soto— Hall, J.

      Elam & Egan and Lee <& Liverman for Plaintiff, Appellant.

      William Goss for Defendants, Appellees.
   The opinion of the court was delivered by

BlaNCHard, J.

This was a suit to enjoin the sale, under foreclosure of mortgage, of certain real property, consisting of a few acres of land with a shingle mill and its appurtenances situated thereon.

Plaintiff owned and operated the mill and became indebted to defendant, a business concern located at San Antonio, Texas, for advances of money, etc., extended from time to time.

He made consignments of shingles to defendant and was expected, in this way, to liquidate his indebtedness. But his debit bills with the company exceeded the credits he became entitled to, and this gave rise to the claim, to secure which he, on December 31,1897, executed a conventional mortgage in favor of defendant company on the mill property. The indebtedness at that time was calculated roughly to be $6352.80, and the same was merged into twelve promissory notes, each for $529.40.

One of the twelve notes, it seems, was subsequently taken up, reducing the indebtedness to $5823.40, and for this amount executory process on the mortgage was applied for and issued on October 29, 1898. The remaining notes were then nearly all due.

This suit, injoining the sale, followed.

The grounds for injunction are that the notes and mortgage were executed by plaintiff for an amount in excess of what he owed defendant company, which amount was estimated at the time and considered to be only approximately correct, subject to subsequent ascertainment of the true amount due.

It is alleged that he was overcharged on the account, which formed the basis of the notes, $1091 for the costs of telegrams, undue allowances made to parties to whom shingles were sold, overcharge on freights, penalties for delayed shipments of shingles, fall in price of shingles, etc.

Another averment is that he was erroneously debited with $3335, the full amount paid one Kelly for certain timber purchased for the mill, when, as a matter of fact, he (plaintiff) had used only $600 worth of the timber.

This contention would make the Kelley timber the property of defendants, with the obligation on part of plaintiff to pay only for such of the timber as he used.

While plaintiff, in one part of his petition for injunction, insists that he owes defendant company only $1977.40, in another part it is represented that on October 22, 1898, which was just seven days before the order of seizure and sale issued, he tendered defendant’s agent $3628.57 as the amount due the company. It is claimed, however, that this was done to avoid litigation and the closing down of the mill.

It is charged that the foreclosure of the mortgage was a malicious proceeding on the part of the company, conceived and put into execution with the motive and design of securing the ownership of the mill property, and that to this end steps were taken to ruin his (plaintiff’s) credit, injure his business, stop his mill, etc. — all for the purpose of rendering it impossible for him to pay the mortgage debt and thus leading up to the defendant’s acquisition of the mill at forced sale.

Upon this allegation is based a general claim for damages against the company of $5000 and $50 for each day the mill is shut down.

Defendant answered denying generally the averments of plaintiff and set forth' at length the business situation between the company and plaintiff out of which grew the indebtedness and the effort to realize upon the same by means of the foreclosure proceedings. It is alleged-that in addition to the amount of the mortgage notes held by the company, plaintiff owes the company the further sum of $263.39, for which judgment is asked in reeonvention.

The judgment below was in favor of the defendant and plaintiff appeals.

The case involves mainly questions of fact.

An attentive consideration given to the voluminous testimony found in the record shows plaintiff’s cause to be without merit save in one particular and that relates to the item of overcharge on freight.

In. a contract between the parties, dated March 25, 1896, setting forth the business relationship entered into, the one with the other, it is stated that shipments of shingles were to be made by plaintiff when ordered by defendant “and to be shipped on green basis — that is without being1 held to become dry, if_said Vaughn Lumber Go. so request; but the Vaughn Lumber Co. guarantee weights not to exceed 350 pounds for each 1000 shingles:”

It appears from the evidence that shingles shipped by rail are charged for in the matter of freight by the hundred weight, and not by the package, or bundle, and that green shingles put up in crates or packages of 1000 to the bundle often exceed 350 pounds per bundle.

Defendant did require the shipment of shingles in a green state, not allowing time to dry out, and the railroads did charge for freight upon the same in advance of 350 pounds per 1000 shingles.

This excess of freight charges was in each instance debited by defendant to plaintiff and entered into the statement of account, which was closed by the giving of the notes secured by the mortgage foreclosed.

Defendant must be held to its contract with plaintiff in this regard and must give credit for the overcharge on freights.

While it is true that the freight charges debited against plaintiff appeared upon the debit statements made to him by defendant from time to time, and reference to the same is made in some of the letters written by plaintiff to defendant, we hardly think, considering the cramped and dependent position in which the plaintiff found himself with reference to the defendant company, he is to be held to have acquiesced in such charges to the extent that he is now estopped from contesting the same. It would be inequitable to so hold him. And, besides, we think it may be fairly deduced from his letters that he objected to being charged with freight in excess of the contract guaranty.

His contention is that the aggregate of the overcharges on freight is $784.88 and that the same is shown on defendant’s account against him.

The understanding at the time the mortgage notes were executed was that if errors and overcharges were subsequently discovered the same should be corrected by credits on the notes. Nor do we think the fact that one of the notes was afterwards returned to him as paid militates against his right now to claim this credit. The note was paid in the course of business between the parties by credits appearing in favor of plaintiff on account of consignments of shingles made to defendant, and without reference to the indebtedness as a whole, and without intention of affecting his right to the correction of errors.

But the $784.88 to which plaintiff is entitled as a credit on this account is subject to a reduction by the amount due defendant as set forth in the reconventional demand — an amount not included in the notes given.

It seems that the notes were given for a sum estimated to cover the indebtedness then due. If errors were made against plaintiff, he was to have credit for same when ascertained. Equally is defendant entitled to relief should it appear that items of indebtedness existed, or afterwards developed, which ran the account in excess of the sum for which the notes were given. The demand in reconvention for $263.39 was such an item. The same figured on statements of account later furnished plaintiff to which he made no objection, and its correctness is otherwise established.

The ends of justice, we think, would be subserved by allowing plaintiff the overcharge of $784.88 on freight, and allowing defendant what he claims in reconvention $263.39, both without interest. The difference between the two amounts is $521.49, with which sum the writ of foreclosure in the sheriff’s hands should be credited.

With regard to the Kelley timber transaction, the evidence leaves no doubt that this was a purchese by plaintiff for his own account, and the fact that he had the bill of sale therefor made out in the name of defendant company does not operate to vest ownership of the timber in the company. Plaintiff can not now be heard to shift his position, assert the timber to be that of defendant, and to claim that he (plaintiff) owes only for as much thereof as he has actually used.

Defendant company in its answer repudiates the idea of its ownership of the timber, but does claim a lien upon the same by reason of the fact that it supplied the purchase money which enabled plaintiff to buy it. This timber, or the greater part of it, is, it seems, on the Texas side of the Sabine river. What may be the rights of the parties with reference to the same, under their contract, by the laws of Texas, it is not for us to say. But so far as the jurisprudence and laws of Louisiana are concerned, the ownership of the timber is in the plaintiff, and defendant can have no greater right therein than to secure reimbursement of the moneys advanced to plaintiff to purchase it, and the expenses it may have been put to in consequence of holding the title at the request of plaintiff.

The amount supplied plaintiff to purchase the timber is included in the mortgage resting on the mill. Of course, if the mill property brings enough at the sale to pay the debt defendant would, in our view, have no further claim on the timber and could no longer refuse to convey the formal title thereof to the plaintiff.

Plaintiff’s allegation of malice on part of defendant in resorting to the courts in enforcement of its mortgage rights has no sufficient foundation in fact. The testimony clearly negatives the contention.

Equally without merit are his representations with regard to a design and purpose formed by defendant to ruin his credit, wreck his fortunes, secure his mill, etc.

The judgment appealed from is found correct save in the particular hereinbefore referred to.

For the reasons assigned, it is ordered, adjudged and decreed that the sheriff of the parish of De Soto do enter as a credit upon the writ of seizure and sale in his hands, issued in the suit of the Vaughn Lumber Company vs. Zachariah W. Cannon, No. 5649 on the docket of the Ninth Judicial District Court in and for the parish of De Soto, Louisiana, the sum of $521.49, of date the 29th of October, 1898, and that he proceed forthwith to the due execution of said writ for the balance due thereunder.

It is further ordered, etc., that the injunction sued out by plaintiff herein be maintained to the extent of the said credit, that the judgment appealed from be amended in consonance with this decree, and that in all other particulars the same be affirmed.

It is further ordered, etc., that defendant be taxed with the costs of both courts.