Thomas v. Herrall

Strahan, J. The defendants moved to strike out of the complaint the words included in parentheses immediately following the name Joe F. Beier, to-wit: “Who was then and there a careless, negligent and unskillful driver.” It is the master’s duty to use due care, that is, ordinary care, [548] in employing servants of sufficient care and skill to discharge the duties of their service. Sherman and Redfield on Neg., § 90. And the mere fact of the incompetency for the work upon which he was employed is not enough to warrant a jury in finding a master guilty of negligence in employing him. Sherman and Redf. on Neg., § 91. These citations show that the words of the complaint which were objected to by the defendants ought, as a matter of correct practice, to have been stricken from it on defendants’ motion; but the court seems to have treated them as immaterial at the trial, gave no charge to the jury declaring any liability against the defendants by reason thereof; and we are clearly of the opinion that the defendants suffered no injury by reason of their retention. In actions at law the safer and better practice undoubtedly is to allow nothing to remain in the complaint or other pleading except the ultimate fact upon which the right or liability depends; but where, after an unsuccessful motion, a party answers over, and the cause is tried on other issues as well as the immaterial one, unless the court has, as a matter of law, declared that the immaterial allegation gave the party some right or created some liability against the adverse party, we ought not to reverse the judgment on the sole ground that the complaint or other pleading contained such immaterial allegation. A party may always protect himself upon the trial against any supposed effect of such allegation by asking of the court a declaration of law that the same does not create any liability against such party. Of course, if it affirmatively appeared from this record that the immaterial matter objected to in any way prejudiced the appellants, we would feel constrained to give them a new trial; but we are satisfied that it did not, and therefore this assignment of error cannot be sustained. 2. An exception was taken to a question or two asked the witness, Mrs. Louise Murphy, who testified on the part of the plaintiff. Mrs. Murphy testified without objection that she resided in Portland, on Hooker and Porter streets; that she saw Mrs. Thomas the next morning a,f ter [549] she was injured, that she was in bed, her face was bruised and her right shoulder. Question. Do you know anything about her side? Answer. No; I do not remember about her side, but she complained. Here counsel for the defendants objected to the witness stating what Mrs. Thomas complained of, as incompetent, irrelevant, immaterial and not part of the res gestee, but the court overruled said objection to which an exception was taken. Q. What did she say? To this question the same objection and exception were taken, and the witness answered: “She said it hurt her there under the right arm. ” The witness was also asked if Mrs. Thomas pointed out to her where it hurt her, and she answered, “Yes, sir.” These several exceptions present but a single question, and that is the competency of this evidence. The ruling of this court in Sullivan v. The O. R. & N. Co., 12 Or. 392, shows that this evidence is no part of the res gestee, nor did counsel upon the argument here contend it was. His contention is that the evidence excepted to was the expression of bodily feelings, and, inasmuch as they occurred near the time of the injury complained of, they may be received as original evidence. It seems to me this evidence is within the principle laid down in 1 G-reenleaf’s Ev., § 102. The author says: “So, also the representations of a sick person of the nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence. If made to a medical attendant they are of greater weight as evidence; but if made to any other person they are not on that account rejected.” 1 Phillips on Ev., *182, *183; Bridges v. The City of Oshkosh, 37 N. W. Rep. 409; Ins. Co. v. Mosley, 8 Wall. 397; Barber v. Merriam, 11 Allen, 322; Hatch v. Fuller, 131 Mass. 574; Quaife v. The Chicago & N. W. R. R. Co. 48 Wis. 513. What was said by this court in relation to Ins. Co. v. Mosley, supra, related more particularly to that part of it discussing the doctrine of res gestee, and no reference was made to the other part of the opinion nor was the same questioned. It was claimed upon the argument of Sullivan v. The O. [550] R. & N. Co., supra, that the statements and declarations of a party in relation to the facts and circumstances of a particular event, made a considerable time after such event happened, or at least not at the time it happened, or so near it as to be a part of such transaction, might be given in evidence by the party making such declarations in his own favor. It was an attempt to enlarge and extend the doctrine of res gestee, and it was to that question this court referred in its comments on the case in 8th Wallace, supra. But the principle involved here is in no wise connected, with or dependent' on the doctrine of res gestee-, uor is it believed that there is any difficulty in its practical application if the limitations so carefully laid down by the court be carefully attended to. The court said: “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 way 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.” Within the principle of these authorities I think the evidence excepted to was competent. Counsel for appellants cite Walder v. The New York Central & Hudson River Railroad Co.; 95 N. Y. 274, and some others of similar import, which hold that declarations which are merely narrative of past transactions are not admissible as part of the res gestee. The authority and force of these cases are conceded. This court held the same doctrine in Sullivan v. The O. B. & N. Co., supra, but the class of authorities do not touch the principle involved in this case. For the reasons indicated the judgment appealed from is affirmed.