McCarrick v. Kealy

Hall, J. The decision of this case in the trial court depended upon the question of fact whether the plaintiff was [645] bitten by the defendant’s dog, or was injured, as the defendant claimed, by a fall while she was running in the field. The plaintiff was the only witness who testified that she was bitten by the dog. What evidence was introduced by the defendant in support of his contention does not appear from the record before us. As a part of the res gestee, and against the defendant’s objection, the court admitted evidence of the declaration of the plaintiff, made to her mother, within five minutes from the time she was injured, and as, crying, she was entering her parents’ house, that Kealy’s dog had bitten her. Proof of the fact that she was crying, or complaining of pain, would have been admissible to show that she was then suffering, but not her statement of the cause of the pain. To render such a declaration admissible as a part of the res gestee it must characterize or explain some material act or occurrence which it accompanies. The res gestee, the occurrence, which was material, was the act by which the plaintiff was injured. Her declarations made while the injuries were being inflicted, were a part of that occurrence, and if they characterized or explained it would have been admissible. If not made during the continuance of the act, but after the act by which she was injured had been completed, they were but a narrative of a past event; and evidence of such declarations was objectionable as hearsay. 1 Greenl. on Ev. § 108; Enos v. Tuttle, 3 Conn. 247, 250; Noyes v. Ward, 19 id. 250, 268; Ford v. Haskell, 32 id. 489, 492; Rockwell v. Taylor, 41 id. 55, 59. The same principle has been enunciated in many other decisions in this State. The declaration which the court permitted to be proved, was not made while the injury was being inflicted upon the plaintiff, but after that act had been entirely completed, and after she had left the field where she was injured and was entering her parents’ house. The only act which this declaration could be said to explain, was the immaterial one which it accompanied, of her returning to her parents’ house, crying. But it is said by the plaintiff that the defendant was not [646] harmed by the ruling of the court admitting the testimony of the witness Stillson, even if such ruling was erroneous, as both the plaintiff and the witness John Kealy testified without objection to the same declaration. There is much force in this claim. The mere fact of an erroneous ruling in the admission of evidence, does not entitle a party, as of right, to a new trial. A majority of the court, however, think that in this case the inadmissible evidence probably influenced the decision of the trial court. The fact that this action was commenced by the prochein ami without the previous request or knowledge of the plaintiff, is immaterial. If the prochein ami could only prosecute the action by direction of the infant, her subsequent knowledge of the pendency of the suit and apparent acquiescence in its prosecution, furnished sufficient evidence of a ratification of his act. But it is not necessary that the prochein ami should have received authority from the infant, to enable him to sue in her name. The law which permits her to sue and appear only by her guardian or next friend, regards her at all times during her infancy as without sufficient knowledge and experience to properly decide when or how an action should be prosecuted for her benefit. “ The law knows no distinction between infants of tender and of mature years; and as no special authority to sue is requisite in the case of an infant just born, so none is requisite from an infant on the very eve of his attaining his majority.” Morgan v. Thorne, 7 M. & W. *400, *408. The prochein ami is regarded as an officer of the court by which, by statute in England, he was originally appointed. It is his duty to care for the interests of the infant in the institution and conduct of suits for his benefit, his power and responsibility in the performance of that duty being similar to that of guardians. Under our practice no previous appointment by the court is required, and the prochein ami named in the writ is permitted to appear and prosecute in the infant’s name, though if he is not a proper person or fails to properly discharge his duties, the court may remove him and appoint another person in his place. Tyler on Inf. & Gov. [647] § 136; Apthorp v. Backus, Kirby, 407, 411; Judson v. Blanchard, 3 Conn. 579, 584. There was error in the ruling of the court in admitting the testimony of the witness Stillson, objected to, and a new trial is granted. In this opinion the other judges concurred.