Evidence, Declarations of deceased persons. Agency, Scope of authority. Contract, What constitutes. Practice, Civil, Exceptions. Words, "First aid."
At the trial of an action by a physician against a railroad corporation for services rendered and expenses incurred in the treatment of one injured by the defendant, it appeared that the plaintiff had rendered first aid to the injured man, and there was evidence tending to show that the plaintiff, after a conversation with and at the suggestion of an employee of the defendant, at whose request on previous occasions he had rendered first aid to injured persons and been paid therefor by the defendant, wrote a letter to a person in charge of the defendant's claim department, inquiring about the defendant's wishes as to the case, that a week later he had another conversation with the same employee, who stated that the claim agent had sent him the plaintiff's letter. It appeared that the employee had died. Subject to exceptions by the defendant, the plaintiff was allowed to testify that the employee had said to him that he had "called in response to a request from the" defendant, and that, after a statement by the plaintiff as to the patient's condition and the probable effect of his being moved, the employee had said, "Don't think of it. The railroad [defendant] will fix you up all right." Held, that the evidence was admissible under R.L.c. 175, § 66, as a declaration of a deceased person, and that it must be inferred that the necessary preliminary findings were made by the judge before it was admitted. Held, also, that a finding for the plaintiff was warranted.
At the trial of an action by a physician against a railroad corporation for services rendered and expenses incurred in the treatment of a person injured by the defendant, it appeared that the plaintiff had rendered services beyond those which, under any definition, might be called "first aid," and there was evidence tending to show that the defendant had agreed to compensate him for all the services rendered and expenses incurred. The defendant asked the judge to rule that "first attendance" meant the initial treatment by the physician, which was at an end when he had done what he considered proper and necessary for the patient's welfare and comfort. The judge refused so to rule, but instructed the jury in substance that "first aid . . . means such care and treatment as is reasonably necessary to be rendered for the life and physical welfare of an injured person until such time as the injured person can either arrange to care for himself or to be cared for by his friends." The jury found for the plaintiff in the full amount claimed by him. Held, that the ruling asked for by the defendant should have been given in substance; that the instruction given by the judge was too broad; but that the error did not harm the defendant, because the jury obviously found that the defendant agreed to pay for the services and expenses, irrespective of whether they were first aid.
SHELDON, J.
The evidence of Jeffrey's statements does not appear to have been admitted as the declaration of the alleged agent to show the nature and extent of his authority. That would have been incompetent. Brigham v. Peters, 1 Gray, 139. Baker v. Gerrish, 14 Allen, 201. Stollenwerck v. Thacher, 115 Mass. 224. But the evidence was competent as the declarations of a deceased witness. R.L.c. 175, § 66. We must infer that the necessary preliminary findings were made before the admission of the testimony. Dickinson v. Boston, 188 Mass. 595, 597. Evidence of his declarations was competent, just as his testimony to the same effect would have been admissible if he had been living.
There was evidence that Jeffrey had requested the plaintiff to continue his care of Litchfield, and had said that the defendant "would fix him up all right." And it could be found on Jeffrey's declaration that the defendant had sent Jeffrey to say this. The weight of the evidence was solely for the jury. Bourne v. Whitman, 209 Mass. 155, 172. Pritchard v. Old Colony Street Railway, 216 Mass. 221. Commonwealth v. Holmes, 119 Mass. 195, 199.
What we have said disposes of all but the third and fifth of the defendant's requests for rulings.
The third request could not have been given. Assuming that there was no evidence to prove the special promise of the defendant alleged to have been made in consideration of the plaintiff's forbearance to press his claim pending Litchfield's action against the defendant, yet the other averments of that count, of which there was evidence, afforded sufficient ground for recovery.
The defendant's fifth request ought to have been given in substance, and the instruction actually given as to "first aid" was too broad. But it sufficiently appears that the defendant was not prejudiced by this error. The plaintiff claimed to recover in all $392, with interest from November 1, 1909. But neither in his declaration nor at the trial did he make any contention that he could recover the whole amount as for "first aid" given to Litchfield. Even under the broad definition of those words given by the judge, the plaintiff could not upon that ground have had a verdict for the whole of his demand. We scarcely see how any part of the services rendered after September 10 could have been said to be included under the words "first aid." Certainly the items in the plaintiff's account dated October 3 and October 7 could by no possibility have been so included. But the plaintiff had a verdict for $476.67, which is the total amount of his demand with interest to the day of the verdict. This makes it certain that he did not recover merely for the "first aid" given to Litchfield, but upon the ground that he rendered all his services upon the employment of the defendant and its undertaking made through its authorized agent to pay him therefore. We already have seen that such a finding was authorized. Accordingly this exception cannot be maintained. St. 1913, c. 716, § 1.
Exceptions overruled.