DELAWARE, L. & W. R. CO. V. ROALEFS.
from the contract, there can be no liability for a loss of life in any case unless death result from the accident within 90 days thereof. Wherefore, the words in question add nothing to the contract,if not the further condition calling for the notice. On the other hand, and in this connection the scope of the insurance, the benefit proposed in this certificate, is to be considered, for said words may be treated as merely intensive or precautionary, rather than be brought into conflict with what is otherwise the plain sense and purpose of the contract, by attributing to them a meaning which they do not necessarily contain. An accident by a means which is external, violent, and fortuitous, and which produces external, visible mark upon the body, may for a time utterly escape the attention, or even the knowledge, of the person affected, and yet result eventually in mutilation or death. In an accident of the kind which killed Dr. Earl, there may be, for a ,time, as in his ease, nothing whatevC'l' to suggest the perils insured against, namely, mutilation or death, as possible results. Yet such accidents are within the scope of this policy. A requirement that notice of such an accident must be given within 10. days of its occurrence would be rather a cancellation of the policy with respect· to a risk distinctly specified therein, than a rule of procedure to be followed by the certificate holder,-an extinguishment of the in<;urance, rather than a limitation upon the method of ascertaining the loss to be compensated. If such a requirement be not void for repugnancy, within the rule illustrated by In re State Fire Ins. Co., 32 Law J. Ch. 300, it is so far unreasonable that we cannot put it into the contract hy implication. We cannot imply from the words in question a significance which they do not express, when the effect would be to annul part of the insurance specified in the certificate as the subjectmatter thereof. The judgment is affirmed.
DELAWARE, L. & W. R. CO. v. ROALEFS. (Circuit Court of Appeals, Third Circuit. October 28, 1895.)
HEAltSAY EVIDENCE-DECLARATIONS 1'0 PHYSICIAN.
In an action for personal injuries, it appeared that a year after the accident, when plaintiff's condition had much improved, and while under the care of another competent physician, he called on a physician of great reputation as a medical expert, made certain statements as to his condition and symptoms, and requested an opinion and physical examination. This expert was produced on the trial, and his evidence was mainly relied on by plaintiff on the question of his injuries. Held, that these circumstances showed that plaintiff called on the expert physician merely to qualify him to testify in his favor, and that hence his statements to the latter were inadmissible.
. 2. EXPERT OPTNION-EHRONEOUS ADMISSION-NECESSITY OF CHARGE.
Plaintiff's declarations to the physiciim having been wrongly admitted, and tile physician having testified as to his opinion as to plaintiff's conditiol1and the future consequences of the injuries, based on the declarations and a physical examination, it was error to refuse to charge that such opinion was to be disregarded by the jUry unless all the dedara;.. tiont;> ,by to the physlciariwere proved to be true. .
of New Jersey.
In Error to the Circuit Court of the United 'States for the District This was an action by Andrew Roalefs against the Delaware, Lackawanna & Western Railroad Company. There was a judgment for plaintiff, and defendant brings error. John W. for plaintiff in error. Joseph Coult and James E. Howell, for defendant in error. Before AOHESON and DALLAS, Circuit Judges, and BUTLER, DistrictoTudge. BUTLER, District Judge. The plaintiff sued to recover compensationfor injuries sustained in an accident, while on the defendant's train. nability was not denied, and the only contest was over the amount due. The plaintiff having called Dr. Hamilton (who had examined him professionally a year after the accident), asked him to state the plaintiff's declarations at the time, respecting his condition and symptoms past and present, together with the witness' opinion based on these declarations and his own personal observations. The defendant objecting, tlle court overruled the objection and noted an exception. The doctor proceeded to detail the declaration, and his observations, and. to state his opinion of the plaintiff's condition at the time, and the probable future consequences of his injuries. After the testimony had closed the defendant requested the court to charge:
"(1) That· the opinion of Dr. Hamilton being based upon the statements of the plaintiff, in connection with a physical examination,lt is to be dIsregarded by the jury, unless all the statements made to him, by the plaintiff are proven to have been true."
This request the court refused. The admisSion Of the testimony and the refusal to charge as desired are assigned as error. The declarations of a patient to his physician respecting his condition and symptoms at the tir;ne of seeking medicataiq, are admissible as evidence in his behalf, under a well-settled exception to the rule excluding "hearsay.". (They do not belong to the class of declarations and expressions admissible as res gestre, and should not be, as they sometimes are, confounded with them.) The exception originally rested on the ground first, that as the common law forbade parties testifying, the facts involved could not be proved in any other way; and second, that the patient's interest in the physician's opinion precluded danger of. falsehood. The modern practice of aduiitting parties as witnesses has removed the first of these grounds; but this is not considered a sufficient reason for excluding the testimony. Railroad Co. v. Urlin, 158 U. S. 271 [15 Sup. Ct. 840J. To render it admissible, however, the plaintiff must establish the fact on which the. exception rests-that is that the declarations were made when seeking medical aid. Here this fact is not proved. It appears simply that the plaintiff called on the doctor a year after the accident, when his condition had much improved, made the declarations, and requested an opinion based upon them and a physical examination. We think the inference is irresistible that
DELAWARE, L. &: W. R' CO. V. ROALEFS.
he did not call to consult the doctor with a view to medical aid; but to employ and qualify him as an expert, to assist in maintainjng the pending suit. The time at which and circumstances under which, the call was made-the fact that he was under the care of another competent physician, and that Dr. Hamilton, who has great reputation as a medical >expert, was produced as such on trial, and his testimony mainly relied upon in this respect-forbids any other. conclusion. It follows that the testimony should have been excluded. Barber v. Mirriam, 11 Allen, 322; Railroad Co. v. Hnntley, 38 Mich. 537. Still the question arises was its admission prejudicial to the defendant? A harmless error is not sufficient cause for reversal. The doctor's opinion might have been taken hypotheticon his observations, and the facts embraced in the plaintiff's statements. Whether the admission of such opinion should follow or precede proof of the supposed facts would have been mat-, tel' of discretion; but until the facts were proved the opinion could not be considered; and if its admission preceded the proof it should have been ruled out if the proof did not follow. If therefore the court had charged the jury to disregard the opinion of Dr.. Hamilton unless it found the plaintiff's declarations proved, the error in admitting them would have been rendered harmless. This the defendant requested the court to do. The request was, however, refused. His plain from what the court said that it proceeded with the understanding that the declarations must be proved to give full effect to the opinion, but that sorne effect should be given to it though they were not so proved; and that in the latter case the jury should determine how much. The court said: ' ,
"Now gentlemen, I feel it to be my duty to say to you that so far ;;is those statements which the plaintiff made to the doctor at the time of the examination, have been proved to you by the plaintiff on the stand; you will: give them fair credence; you will give them full credence; they are entitled to full belief. But if he stated anything to Doctor Hamilton which he has not proved upon the stand, you will instantly see that Doctor Hamilton's opinion may have been based upon some wrong ,theory. It is a question of evidence, gentlemen, and I must leave it to you. "I do not intend to go over this e,idence at. all. It is all fresh in your mind. Did Mr. Roalefs make any statement to Doctor Hamilton, upon which Doctor Hamilton based his opinion, which he did not state hereupon the witness stand? If he did, then Doctor Hamilton's opinion is based upon statements that have not been proved to you, and therefore it could not have as muc.h weight With you-ought not to have as much weight :with you as if the opInIon of Doctor Hamilton were based solely upon 'hIs own observation."
In answer to the :Qoint requesting instruction to disregard. the opinion if the declarations were not found to be proved, the court s a i d : '
"I decline to charge that, gentlemen. I have already charged you pretty fully upon that point; at least, as fully as I desire to. . I simply say that the jury will gIve Doctor Hamilton's testimony such weight, as it is entitled to under the cIrcumstances. If you are satisfied that Dr. Opinion has been based upon perfectly. true statements of the plaintiff, and the plaintiff has proved those facts before you, you will give it full weight. If, on the contrary, you think those statements have not been fUlly proved before you, of course it will detract from the of Dr, Hamilton's opin-
vol. 70. ,
ion, bllcll,use, as.: I have said to yo:q, his opinion is. ,based not only "pon his .own examination, but also :qpon the statements made to him by the plaliltut."· , ,. " ,
This was error, which instead of curing the injury inflicted by admitting the declarations,tended to aggravate it. The opinion of the doctor is indivisible; it must be accepted or rejected as a whole; there is nothing to indicate how much it rests on the declaraThe jury should not tions; and how much on personal have been allowed to guess what it would have been in the absence of the declarations, or any part of them, and to estimate its value accordingly. Yet the effect of the charge was we think to do this. We do not suppose the court intended it, but that it is the result of inad'\"ertence, such as might readily occur in the haste of trial. It was, however, none the less misleading; and the judgment must therefore be reversed.
KANSAS & A. V. RY. CO. v. DYE et al. (Circuit Court of Appeals, Eighth Circuit. No. 558.
PRACTICE ON ApPEAL-OBJECTION NOT RAISED BELOW.
September 16, 1895.)
Where It clearly appears from a record on appeal that the case was tried in the lower court upon the theory that all the averments of the complaint were put In issue by the answer, and the testimony was Introduced and Instructions given on that theory, without objection from either side, the plaintiff will not be permitted to question the sufficiency of the denials of the answer In the appellate court.
FOR EMPLOYES-CONTRIBUTORY NEGJ,IGENCE.
The rules of the K. Ry. Co. provided, among other things regarding the duties of section foremen, that they should "carefully flag their truck and hand cars against special and extra trains or engines, which may be run at any time," and that "special care must be In running hand cars and truck cars on all sections of the road, where, by reason of fogs, sharp curves, or other circumstances, risk or danger is involved," and that handcars "must always be protected by a flag when a clear track cannot be seen for a safe distance." Q., a secti()ll foreman In the employ of the K. Ry. Co., while riding on, a hand car, approached a high bridge, at the further end of which was a sharp curve; the track near the curve, which ranon a down grade, being also.concealed by timber, and a hIgh wind blowing at the time in theoLrection which would carry away the sound of a whistle at the curve. ,Q., dId not flag his hand car for a special train, nor take any special care on account of the sharp curve or other dangerous circumstances, except to stop and listen before entering on the bridge. The hand car was struck by a special train, and Q. was killed. that the rules above s41ted were reasonable, and that Q.'s disregard of them constituted such negligence on his part, contributing to the accident, as to bar any recovery against the railway company by his representatives.
Iil Error to the United States Court in the Indi,auTerritory. This was an ;1ction by Anna J. Dye, Edgar Dye (her husband), Sarah E. Quilliam, Robert Quilliam, David P. Quilliam, Eulie Myrtle 'Quilliam, and JohnT. Quilliarn (the last four being minors, who sue by their next friend, Sarah, E. Quilliam) against the Kansas & Arkansas Valley Railway Company ·for damages for causing the death of one