Insurance Company v. Mosley/Opinion of the Court
This is a writ of error to the Circuit Court of the United States for the Northern District of Illinois. The action was upon a policy of insurance. It insured Arthur H. Mosley against loss of life, or personal by any accident within the meaning of the instrument, and was issued to Mrs. Arthur H. Mosley, the wife of the assured, for her benefit. The declaration was in assumpsit. The defendant pleaded the general issue, and the cause was tried by a jury. The plaintiff recovered. During the trial, a bill of exceptions was taken by the plaintiff in error, by which it appears that the contest between the parties was upon the question of fact, whether Arthur H. Mosley, the assured, died from the effects of an accidental fall down stairs in the night, or from natural causes.
The defendant in error was called as a witness in her own behalf, and testified, 'that the assured left his bed Wednesday night, the 18th of July, 1866, between 12 and 1 o'clock; that when he came back, he said he had fallen down the back stairs, and almost killed himself; that he had hit the back part of his head in falling down stairs; . . . she noticed that his voice trembled; he complained of his head, and appeared to be faint and in great pain.'
To the admission of all that part of the testimony which relates to the declarations of the assured, about his falling down stairs, and the injuries he received by the fall, the counsel of the defendants objected. The court overruled the objection, and the defendants excepted.
William H. Mosley, son of the assured, testified, in behalf of the plaintiff, 'that he slept in the lower part of the building, occupied by his father; that about 12 o'clock of the night before-mentioned, he saw his father lying with his head on the counter, and asked him what was the matter; he replied, that he had fallen down the back stairs and hurt himself very badly.' The defendants objected to both the question and answer. An exception to their admission followed.
The same witness testified further, 'that on the day after the fall, his father said he felt very badly, and that if he attempted to walk across the room, his head became dizzy; on the following day, he said he was a little worse, if anything.' The admission of this testimony also was excepted to by the defendants.
This statement presents the questions which we are called upon to consider. They are, whether the court erred in admitting the declarations of the assured, as to his bodily injuries and pains, and whether it was error to admit such declarations, to prove that he had fallen down the stairs.
It is to be remarked, that the declarations of the former class all related to present existing facts at the time they were made.
Those of the latter class were made immediately, or very soon after the fall; the declarations to his son, before he returned to his bed-room; those to his wife, upon his reaching there.
Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent explanatory or corroborative evidence, it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.
In actions for the breach of a promise to marry, such evidence is always received to show the affection of the plaintiff for the defendant while the engagement subsisted, and the state of her feelings after it was broken off; and in actions for criminal conversation, to show the terms upon which the plaintiff and his wife lived together before the cause of action arose. Upon the same ground, the declarations of the party himself are received to prove his condition, ills, pains, and symptoms, whether arising from sickness, or an injury by accident or violence. If made to a medical attendant, they are of more weight than if made to another person. But to whomsoever made, they are competent evidence. Upon these points, the leading writers upon the law of evidence, both in this country and in England, are in accord. 
There is a limitation of this doctrine that must be carefully observed in its application.
Such evidence must not be extended beyond the necessity upon which the rule is founded. It must relate to the present, and not to the past. Anything in the nature of narration must be excluded. It must be confined strictly to such complaints, expressions, and exclamations, as furnish evidence of 'a present existing pain or malady.'  Examined by the standard of these rules, the testimony to which this exception relates was properly admitted.
The other exception requires a fuller examination.
Was it competent to prove the fall by the declarations of the assured made under the circumstances disclosed in the bill of exceptions?
In Thompson and Wife v. Trevanion,  the action was for the battery and wounding of the wife. Lord Chief Justice Holt 'allowed, what the wife said immediately upon the hurt received, and before that she had time to contrive or devise anything for her own advantage, to be given in evidence.' The reporter adds: 'Quod nota. This was at nisi prius, in Middlesex, for wounding the wife of the plaintiff.' This case was referred to by Lord Ellenborough with approbation in the case before him of Aveson v. Kinnaird.  In that case, Lawrence, Justice, in answer to the objection, that such evidence was hearsay, said: 'It is in every day's experience in actions of assault, that what a man has said of himself, to his surgeon, is evidence to show what he has suffered by the assault.' 
The King v. Foster  was an indictment for manslaughter, for killing the deceased by driving a cab over him. A wagoner was called as a witness for the prosecution. He stated that he saw the cab drive by at a very rapid rate, but did not see the accident, and that immediately after, on hearing the deceased groan, he went to him and asked him what was the matter. The counsel for the prisoner objected, that what was said by the deceased, in the absence of the prisoner, could not be received in evidence.
Gurney, Baron, said, that what the deceased said at the instant, as to the cause of the accident, was clearly admissible.
Park, Justice, said, that it was the best possible testimony that, under the circumstances, could be adduced to show what knocked the deceased down. Mr. Justice Patterson concurred. The prisoner was convicted.
In the Commonwealth v. Pike,  the indictment, as in the preceding case, was for manslaughter. The defendant was charged with killing his wife. It appeared that the deceased ran up stairs from her own room, in the night, crying murder, and bleeding. Another woman, into whose room she was admitted, went, at her request, for a physician. A third person, who heard her cries, went for a watchman, and, on his return, proceeded to the room where she was. He found her on the floor, bleeding profusely. She said the defendant had stabbed her. The defendant's counsel objected to the admission of this declaration in evidence. The objection was overruled. The Supreme Court of Massachusetts held, that the evidence was properly admitted. It was said that the declaration was 'of the nature of res gestoe,' and that the time when it was made was so recent, after the injury was inflicted, as to justify receiving it upon that ground.
It is not easy to distinguish this case and that of The King v. Foster, in principle, from the case before us, as regards the point under consideration.
In Aveson v. Kinnaird, it was said by Lord Ellenborough, that the declarations were admitted in the case in Skinner, because they were a part of the res gestoe.
To bring such declarations within this principle, generally, they must be contemporaneous with the main fact to which they relate. But this rule is, by no means, of universal application. In Rawson v. Haigh,  a debtor had left England and gone to Paris, where he remained. The question was, whether his departure from England was an act of bankruptcy, and that depended upon the intent by which he was actuated. To show this intent, a letter written in France, a month after his departure, was received in evidence. Upon full argument, it was held that it was properly received. Baron Park said: 'It is impossible to tie down to time the rule as to the declarations. We must judge from all the circumstances of the case. We need not go the length of saying, that a declaration, made a month after the fact, would, of itself, be admissible; but if, as in the present case, there are connecting circumstances, it may, even at that time, form a part of the Whole res gestoe.'
Where a peddler's wagon was struck and the peddler injured by a locomotive, the Supreme Court of Pennsylvania said: 'We cannot say that the declaration of the engineer was no part of the res gestoe. It was made at the time-in view of the goods strewn along the road by the breaking up of the boxes and seems to have grown directly out of and immediately after the happening of the fact.' The declaration was held to be 'a part of the transaction itself.' 
In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distroted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. To reject the verbal fact would not unfrequently have the same effect as to strike out the controlling member from a sentence, or the controlling sentence from its context. The doctrine of res gestoe was considered, by this court, in Beaver v. Taylor.  What was said in that case need not be repeated. Here the principal fact is the bodily injury. The res gestoe are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the letter subsisted and were in progress. Where sickness or affection is the subject of inquiry, the sickness or affection is the principal fact. The res gestoe are the declarations tending to show the reality of its existence, and its extent and character. The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solied basis of reason and authority. We think it was properly applied in the court below.
In the ordinary concerns of life, no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive. Their probative force would not be questioned. Unlike much other evidence, equally cogent for all the purposes of moral conviction, they have the sanction of law as well as of reason. The want of this concurrence in the law is often deeply to be regretted.  The weight of this reflection, in reference to the case under consideration, is increased by the fact, that what was said could not be received as 'dying declarations,' although the person who made them was dead, and hence, could not be called as a witness.
^4 1 Greenleaf on Evidence, § 102; 1 Phillips on Evidence (last ed.) p. 183; 1 Taylor on Evidence, 478, § 518.
^5 Bacon v. The Inhabitants, &c., 7 Cushing, 586.
^6 Skinner, 402.
^7 6 East, 197.
^8 Ib. 191.
^9 6 Carrington & Payne, 325.
^10 3 Cushing, 181.
^11 2 Bingham, 99.
^12 Hanover Railroad Co. v. Coyle, 55 Pennsylvania State, 402.
^13 1 Wallace, 637.
^14 Appleton on Evidence, ch. 11, 12.