Vicksburg v. O'Brien/Opinion of the Court
1. At the trial the plaintiffs offered to read to the jury the deposition of a physician, and did read the first, second, and third interrogatories propounded to him, and the answers thereto. Responding to the first and second interrogatories, he stated, among other things, that his attendance upon Mrs. O'Brien commenced on the sixteenth of September, 1881; that he found her suffering extreme pain and in a very nervous condition, resul ing a few hours before from a railroad accident on defendant's road; that such was the cause of her injuries he knew from her own answers, from the statement of her brother-in-law, and from attending others who were on the train with her. The third interrogatory and answer were as follows: '(3) Look on the accompanying statement, dated November 26, 1881, and state if it was written by you at the date it bears, for what purpose it was written, and to whom it was delivered. Does the statement represent substantially and correctly Mrs. O'Brien's condition as it appeared when you first saw her, and as it continued up to November 26, 1881? Answer. I have looked upon the statement referred to, which was written by myself, at Mr. O'Brien's request, at the date mentioned, when he was about to take his wife away from here to his home in New Orleans, and was intended to convey an idea of how she was when I was called to see her, and what her condition was when she left my charge; and in my opinion I correctly stated her condition at times referred to.'
The written statement referred to in the interrogatory was signed by the witness, and attached to his deposition as an exhibit. It was addressed to Mr. O'Brien, and sets forth, with much detail, the nature of the injuries received by the wife, and their effect upon her bodily and mental condition. It also embodied an expression of the witness' opinion as to the probable length of time within which she might recover from her injuries. The plaintiff, before reading the remaining interrogatories and answers, offered to read this statement to the jury as evidence. The company objected, upon these grounds: That it was not made by the witness under oath, and in defendant's presence, or with its knowledge and consent; that it was hearsay evidence, and, therefore, wholly incompetent; and that, in any event, it could only be referred to by the witness to refresh his recollection. The court overruled the objection and permitted the statement to be read in evidence, the defendant taking an exception thereto, which was allowed. The remainder of the deposition was then read to the jury.
We are of opinion that this ruling cannot be sustained upon any principle recognized in the law of evidence. The authorities are uniform in holding that a witness is at liberty to examine a memorandum prepared by him, under the circumstances in which this one was, for the purpose of refreshing or assisting his recollection as to the facts stated in it. But there are adjudged cases which declare that, unless prepared in the discharge of some public duty, or of some duty arising out of the business relations of the witness with others, or in the regular course of his own business, or with the knowledge and concurrence of the party to be charged, and for the purpose of charging him, such a memorandum cannot, under any circumstances, be admitted as an instrument of evidence.  There are, however, other cases to the effect that, where the witness states under oath that the memorandum was made by him presently after the transaction to which it relates for the purpose of perpetuating his recollection of the facts, and that he knows it was correct when prepared, although after reading it he cannot recall the circumstances so as to state them alone from memory, the paper may be received as the best evidence of which the case admits. 
The present case does not require us to enter upon an examination of the numerous authorities upon this general subject, for it does not appear here but that at the time the witness testified he had, without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection, there was no necessity whatever for reading that paper to the jury. Applying, then, to the case the most liberal rule announced in any of the authorities, the ruling by which the plaintiffs were allowed to read the physician's written statement to the jury a evidence, in itself, of the facts therein recited, was erroneous.
It is, however, claimed, in behalf of the plaintiffs, that in his answers to other interrogatories the physician testified, apart from the certificate, to the material facts embodied in it, and that therefore, the reading of it to the jury could not have prejudiced the rights of the defendant, and, for that reason, should not be a ground of reversal. We are unable to say that the defendant was not injuriously affected by the reading of the physician's certificate in evidence. It is not easy to determine what weight was given to it by the jury. In estimating the damages to be awarded in view of the extent and character of the injuries received, the jury, for aught that the court can know, may have been largely controlled by its statements. The practice of admitting in evidence the unsworn statements of witnesses, prepared in advance of trial at the request of one party, and without the knowledge of the other party, should not be encouraged by further departures from the established rules of evidence. While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was commited it is well settled that a reversal will be directed unless it appears beyond doubt that the error complained of did not and could not have prejudiced the rights of the party. Smiths v. Shoemaker, 17 Wall. 630, 639; Deery v. Cray, 5 Wall. 795; Moores v. National Bank, 104 U.S. 630; Gilmer v. Higley, 110 U.S. 50; S.C.. 3 Sup. Ct. Rep. 471.
2. At the trial below, plaintiffs introduced one Roach as a witness, who, during his examination, was asked whether he did not shortly after the accident have a conversation with the engineer having charge of defendant's train at the time of the accident about the rate of speed at which the train was moving at the time. To that question the defendant objected, but its objection was overruled, and the witness permitted to answer. The witness had previously stated that, on examination of the track after the accident, he found a cross-tie or cross-ties under the broken rail in a decayed condition. His answer to the above question was: 'Between ten and thirty minutes after the accident occurred I had such a conversation with Morgan Herbert, the engineer having charge of the locomotive attached to the train at the time of the accident, and he told me that the train was moving at the rate of eighteen miles an hour.' The defendant renewed its objection to this testimony by a motion to exclude it from the jury. This motion was denied, and an exception taken. As bearing upon the point here raised it may be stated that, under the evidence, it became material-apart from the issue as to the condition of the track-to inquire whether at the time of the accident (which occurred at a place on the line where the rails in the track were, according to some of the proof, materially defective) the train was being run at a speed exceeding 15 miles an hour. In this view, the declaration of the engineer may have had a decisive influence upon the result of the trial.
There can be no dispute as to the general rules governing the admissibility of the declarations of an agent to affect the principal. The acts of an agent, within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the principal, and may be proven without calling the agent as a witness. So, in consequence of the relation between him and the principal, his statement or declaration is under some circumstances regarded as of the nature of original evidence; 'being,' says Phillips, 'the ultimate fact to be proved, and not an admission of some other fact.' 1 Phil. Ev. 381. 'But it must be remembered,' says Greenleaf, 'that the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admissio , whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act and part of the res gastoe that it is admissible at all; and, therefore, it is not necessary to call the agent to prove it; but, wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it.' 1 Greenl. § 113. This court had occasion in Packet Co. v. Clough, 20 Wall. 540, to consider this question. Referring to the rule, as stated by Mr. Justice STORY in his treatise on Agency, (section 134,) that 'where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestae,' the court, speaking by Mr. Justice STORY, said: 'A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified, or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the res gestae.'
We are of opinion that the declaration of the engineer Herbert to the witness Roach was not competent against the defendant for the purpose of proving the rate of speed at which the train was moving at the time of the accident. It is true that, in view of the engineer's experience and position, his statements under oath, as a witness, in respect to that matter, if credited, would have influence with the jury. Although the speed of the train was, in some degree, subject to his control, still his authority, in that respect, did not carry with it authority to make declarations or admissions at a subsequent time, as to the manner in which, on any particular trip, or at any designated point in his route, he had performed his duty. His declaration, after the accident had become a completed fact, and when he was not performing the duties of engineer, that the train, at the moment the plaintiff was injured, was being run at the rate of 18 miles an hour, was not explanatory of anything in which he was then engaged. It did not accompany the act from which the injuries in question arose. It was, in its essence, the mere narration of a past occurrence, not a part of the res gestae; simply an assertion or representation, in the course of conversation, as to a matter not then pending, and in respect to which his authority as engineer had been fully exerted. It is not to be deemed part of the res gestae, simply because of the brief period intervening between the accident and the making of the declaration. The fact remains that the occurrence had ended when the declaration in question was made, and the engineer was not in the act of doing anything that could possibly affect it. If his declaration had been made the next day after the accident, it would scarcely be claimed that is was admissible evidence against the company. And yet the circumstance that it was made between 10 and 30 minutes-an appreciable period of time-after the accident, cannot, upon principle, make this case an exception to the general rule. If the contary view should be maintained, it would follow that the declarations of the engineer, if favorable to the company, would have been admissible in its behalf as a part of the res gestae, without calling him as a witness; a proposition that will find no support in the law of evidence. The cases have gone far enough in the admission of the subsequent declaration of agents as evidence against their principals. These views are fully sustained b adjudications in the highest courts of the states. 
We deem it unnecessary to notice other exceptions taken to the action of the court below.
^1 Lightner v. Wike, 4 Serg. & R. 203; Calvert v. Fitzgerald, Litt. Sel. Cas. 388; Lawrence v. Barker, 5 Wend. 305; Redden v. Spruance, 4 Har. (Del.) 267, 268; Field v. Thompson, 119 Mass. 151.
^2 Russell v. Hudson River R. Co., 17 N. Y. 140; Guy v. Mead, 22 N. Y. 465; Merrill v. Ithaca & O. R. Co., 16 Wend. 586; Kelsea v. Fletcher, 48 N. H. 283; Haven v. Wendell, 11 N. H. 112; Mims v. Sturdevant, 36 Ala. 640; State v. Rawls, 2 Nott & McC. 331, 334.
^3 Luby v. Hudson River R. Co., 17 N. Y. 131; Pennsylvania R. Co. v. Books, 57 Pa. St. 343; Dietrich v. Baltimore & H. S. R. Co., 58 Md. 347, 355; Lane v. Bryant, 9 Gray, 245; Chicago B. & Q. R. Co. v. Riddle, 60 Ill. 535; Virginia & T. R. Co. v. Sayers, 26 Gratt. 351; Chicago & N. W. R. Co. v. Fillmore, 57 Ill. 266; Michigan Cent. R. Co. v. Coleman, 28 Mich. 446; Mobile & M. R. Co. v. Ashcraft, 48 Ala. 30; Bellefontaine Ry. Co. v. Hunter, 33 Ind. 354; Adams v. Hannibal & St. J. R. Co., 74 Mo. 556; S.C.. 7 Amer. & Eng. R. Cas. 416, and note; Kansas Pac. R. Co. v. Pointer, 9 Kan. 630; Roberts v. Burks, Litt. Sel. Cas. 411; Hawker v. Baltimore & O. R. Co., 15 W. Va. 636. See also 1 Tayl. Ev. (7th Eng. Ed.) § 602.