Eldridge v. Barton , 232 Mass. 183 ( 1919 )

De Courcy, J.

The plaintiff’s intestate, Barzillai Eldridge, was struck by the defendant’s motor car and fatally injured. This action was brought to recover for his conscious suffering and death, and resulted in a verdict for the plaintiff. Numerous exceptions were taken by the defendant during the trial, but the only ones now relied on relate to the exclusion of certain evidence and to the action of the judge with reference to a correction of the verdict.

The defendant offered to show by two or more witnesses that soon after Eldridge was injured he said, referring to the accident, “It is my fault; I am to blame.” To elicit this information, the question was put to one of these witnesses; “What did you hear him say?” and was excluded by the judge. The record does not disclose the reason for rejecting this testimony; and we must consider whether it was admissible on any ground. The declaration contained counts for the conscious suffering of the intestate, and counts for his death. Although these two causes-of action can now be joined in a single proceeding (St. 1911, c. 31), the plaintiff administrator is suing in two distinct capacities. He is acting as the representative of the estate of Eldridge in Seeking to recover under the counts for conscious suffering the damages which Eldridge himself could have recovered had he survived the accident. On these counts the statement in question was admissible as an assertion by Eldridge that the accident was due to his own lack of due care, which is inconsistent with and tends to discredit the present allegation made by his administrator, that he (Eldridge) was then in the exercise of due care; and hence it was competent as being in the nature of an admission. The fact that the admission was against the interest of the intestate adds to its weight. Wigmore on Ev. § 1048. Hobart v. County of Plymouth, 100 Mass. 159. Ellis v. Pierce, 172 Mass. 220. Manning v. Lowell, 173 Mass. 100. Snow v. New York, New Haven, & Hartford Railroad, 185 Mass. 321. Hopkins v. American Pneumatic Service Co. 194 Mass. 582. Fellows v. Smith, 130 Mass. 378. Daggett v. Simonds, 173 Mass. 340.

On the counts for death however the plaintiff is not acting in the interest of the estate of Barzillai Eldridge. The damages recovered thereunder would not be assets of the estate in the hands of the administrator, but would be in the nature of a fine which the State imposes upon one whose negligence caused the death of the intestate and which is given as a gratuity to the next of kin. Boott Mills v. Boston & Maine' Railroad, 218 Mass. 582. In the present action these next of kin are not in privity with, nor claiming under the intestate; and hence the admission made by him does not bind them nor bind the plaintiff administrator so far as he is suing for their benefit. McCarthy v. William H. Wood Lumber Co. 219 Mass. 566. Wall v. Massachusetts Northeastern Street Railway, 229 Mass. 506.

It may be added that the evidence would be admissible on both claims, as declarations of a deceased person' under R. L. c. 175, § 66, if the trial judge should find that the preliminary requirements of the statute were complied with. One of those requirements is, that the declaration must have been made “upon the personal knowledge of the declarant.” If the statement of the intestate was merely the assertion of an opinion (as distinguished from one of fact) it was not admissible under the statute. It is often difficult to trace the logical or legal distinction between fact and opinion, and, where the form of the statement leaves it doubtful, it is for the court to decide in which sense the declaration was made. Wigmore on Ev. § 1919. Slotofski v. Boston Elevated Railway, 215 Mass. 318. Little v. Massachusetts Northeastern Street Railway, 223 Mass. 501. Furthermore, even where a statement such as that-made by the intestate involves more or less of opinion, if it is in substance an inference of fact from a set of collective facts observed by the person making the statement, which could not be described in detail as they appeared to him, the evidence will be admissible under the rule of Commonwealth v. Sturtivant, 117 Mass. 122, 133. See Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560, 562.

We do not deem it necessary to consider the alleged error in the correction of the verdict as that question is not likely to arise in another trial.

As the evidence was excluded generally, when at least it was competent as an admission on the claim for conscious suffering, and we cannot say that the error did not injuriously affect the substantial rights of the defendant, the entry must be

Exceptions sustained.