Bleckley, Chief Justice.
1. The plaintiff below, Holland, being a passenger upon the train, was carried past the station at which he wished to stop. Piscovering the fact, he requested the conductor to let him off, and a vital question.in the case was whether he alighted safely and .received his injury afterwards, by falling through a trestle.on his way back to the station, or whether he fell through.the.tr.estlefin [267]*267alighting, by reason of being forced or. pushed off at that point by the conductor. There is no doubt but that he was seriously injured by his fall, his leg being broken. No one witnessed the fall. lie testified, in his o.wn. behalf and made a case of gross negligence against the company. The evidence of another witness was admitted, over objection, as to what the plaintiff said in giving an account of the manner of his leaving-the train and receiving the injury. "When these declarations were made, the plaintiff had pulled off his coat, detached his suspenders, bound up his broken limb, crawled through a culvert from one side of the .railway to .another, seated himself on the cross-ties and cried for help. It was late at night. A person who heard his cry reached him about half an hour after first hearing him. To this person the statement was made.; and the question is. was that statement a part of the res gestee ?
We think it was not. The code, §8773, declares that “Declarations accompanying an ..act or s.o nearly connected therewith intime as to be free from all suspicion of device or afterthought, are admissible in evidence as part of res gesteeIt is manifest that the act by which the plaintiff was injured had completely terminated before his declarations were made, and that they were no accompaniment of the same. Were they so connected with it in time as to be free from, all suspicion of device or afterthought.? He had turned his attention from the act to measures looking to his own safety and comfort. He had certainly occupied hi.s thoughts with something besides the facts and circumstances to which his declarations related. He had full opportunity, although no doubt under great suffering, to devise a story in his own interest, and there is no reason for concluding that he did not have capacity to take advantage of his opportunity. He was exposed to the temptation of fabricating [268]*268a story, if lie needed the aid of invention, and the exposure was under circumstances calculated to excite suspicion that his statement was, or might have been, referable to deliberation and afterthought, rather than to spontaneous or instinctive utterance. This does not imply that he did fabricate, for he might not have done so; truth may have been with him and invention unnecessary. But as his declarations did not accompany the act, they had to be so nearly connected therewith in time as to be free from all suspicion of device or afterthought. Hall vs. The State, 48 Ga. 607. If subject to suspicion • at all they were not admissible, although in the particular case the suspicion might be erroneous. In Augusta Factory vs. Barnes, 72 Ga. 218, the injured person was a child 14 years old, and she died from the injury. Her declarations, made half an hour after the injury was received, were admitted in evidence upon the ground that they were free from suspicion, this court saying, “ It is scarcely credible that this little girl, while enduring such excruciating pain — perhaps torture would not be too strong a word to characterize it — from this frightful wound, would have been capable of framing a story with a view to her ultimate advantage of gain, or for any other ulterior purpose.” In considering that case afterwards, in Augusta & Summerville Railroad Co. vs. Randall, 79 Ga. 311, in which latter case the declarations of a mature woman, not more remote in time, were held inadmissible, the court said: “ That case must rest alone upon its own peculiar facts, and will not be extended beyond them. . . . The proximity of time in which declarations are made to the main transaction, is not the only test of their admissibility in evidence, but they must also be free from all suspicion of device or afterthought.” It is obvious that upon this requisite of freedom from suspicion, the age and discretion of the [269]*269speaker must be of very considerable importance. "We think the doctrine recognized generally by courts, others as well as our own, would require the exclusion of the evidence in this case. A somewhat thorough discussion of the subject will be found in the opinion by Earle, J., in "Waldele vs. N. Y. C. & H. R. Railroad Co., 95 N. Y. 274, the facts of which case were quite as favorable for the admission of the evidence as are those of the present case, and it was ruled inadmissible.
2. The witness Branch, on cross-examination, was interrogated as to conversation in the presence of Collins, and as to conversation addressed to Collins. This was with a view to laying the foundation for impeaching him by the testimony of Collins. His answers, without the explanation which he was allowed to super-add, would not show that he might have been misunderstood by Collins as to the former conversation. With the explanation, the answers show plainly that Hitt did the talking or. the most of it, and that Branch responded by .nodding his head several times, without expressing himself in words. What Hitt said was pertinent to the subject-matter to which the cross-examination related, and the nodding of the head by the witness was perhaps ambiguous, meaning either that [270]*270he understood what Hitt said, or that he assented to some of it as representing' the truth of the case. The latter construction might have been put upon it by Collins, and the jury would not have known whether this was correct or not had not all the facts and circumstances of the conversation"been brought' to light as the witness detailed them. Indeed, without some of the explanation, they would not have 'even known that Branch expressed himself in this way at all. Whether Hitt was an agent of the company to talk as he did, is quite beside the question; fob the company sought tó affect the witness by the part he, the witness, took, or was supposed to have takeii, in that conversation, no matter who or what the other interlocutor was. He had a right to show what the part attributable to himself really was, and in order to do so,-under the peculiar circumstances it was 'necessary to detail all or miich of what Hitt said. The general rule as to bringing out the'whole of the’pei’ti'nent matter of a conversation where a part of it is touched upon,-is applicable to the present case with peculiar force, for here the conversation was conducted oh one side by wbrds and on the other chiefly by signs alone.
3. Hitt talked very improperly, and with an evident purpose to corrupt his host, Mr. Bránch, as a witness. Collins was with him to hear what was said, and both, it seems, weré sent by Büsh, Esq’r, one of the company’s counsel, to get up evidence to be used in the ease.
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Bleckley, Chief Justice.
1. The plaintiff below, Holland, being a passenger upon the train, was carried past the station at which he wished to stop. Piscovering the fact, he requested the conductor to let him off, and a vital question.in the case was whether he alighted safely and .received his injury afterwards, by falling through a trestle.on his way back to the station, or whether he fell through.the.tr.estlefin [267]*267alighting, by reason of being forced or. pushed off at that point by the conductor. There is no doubt but that he was seriously injured by his fall, his leg being broken. No one witnessed the fall. lie testified, in his o.wn. behalf and made a case of gross negligence against the company. The evidence of another witness was admitted, over objection, as to what the plaintiff said in giving an account of the manner of his leaving-the train and receiving the injury. "When these declarations were made, the plaintiff had pulled off his coat, detached his suspenders, bound up his broken limb, crawled through a culvert from one side of the .railway to .another, seated himself on the cross-ties and cried for help. It was late at night. A person who heard his cry reached him about half an hour after first hearing him. To this person the statement was made.; and the question is. was that statement a part of the res gestee ?
We think it was not. The code, §8773, declares that “Declarations accompanying an ..act or s.o nearly connected therewith intime as to be free from all suspicion of device or afterthought, are admissible in evidence as part of res gesteeIt is manifest that the act by which the plaintiff was injured had completely terminated before his declarations were made, and that they were no accompaniment of the same. Were they so connected with it in time as to be free from, all suspicion of device or afterthought.? He had turned his attention from the act to measures looking to his own safety and comfort. He had certainly occupied hi.s thoughts with something besides the facts and circumstances to which his declarations related. He had full opportunity, although no doubt under great suffering, to devise a story in his own interest, and there is no reason for concluding that he did not have capacity to take advantage of his opportunity. He was exposed to the temptation of fabricating [268]*268a story, if lie needed the aid of invention, and the exposure was under circumstances calculated to excite suspicion that his statement was, or might have been, referable to deliberation and afterthought, rather than to spontaneous or instinctive utterance. This does not imply that he did fabricate, for he might not have done so; truth may have been with him and invention unnecessary. But as his declarations did not accompany the act, they had to be so nearly connected therewith in time as to be free from all suspicion of device or afterthought. Hall vs. The State, 48 Ga. 607. If subject to suspicion • at all they were not admissible, although in the particular case the suspicion might be erroneous. In Augusta Factory vs. Barnes, 72 Ga. 218, the injured person was a child 14 years old, and she died from the injury. Her declarations, made half an hour after the injury was received, were admitted in evidence upon the ground that they were free from suspicion, this court saying, “ It is scarcely credible that this little girl, while enduring such excruciating pain — perhaps torture would not be too strong a word to characterize it — from this frightful wound, would have been capable of framing a story with a view to her ultimate advantage of gain, or for any other ulterior purpose.” In considering that case afterwards, in Augusta & Summerville Railroad Co. vs. Randall, 79 Ga. 311, in which latter case the declarations of a mature woman, not more remote in time, were held inadmissible, the court said: “ That case must rest alone upon its own peculiar facts, and will not be extended beyond them. . . . The proximity of time in which declarations are made to the main transaction, is not the only test of their admissibility in evidence, but they must also be free from all suspicion of device or afterthought.” It is obvious that upon this requisite of freedom from suspicion, the age and discretion of the [269]*269speaker must be of very considerable importance. "We think the doctrine recognized generally by courts, others as well as our own, would require the exclusion of the evidence in this case. A somewhat thorough discussion of the subject will be found in the opinion by Earle, J., in "Waldele vs. N. Y. C. & H. R. Railroad Co., 95 N. Y. 274, the facts of which case were quite as favorable for the admission of the evidence as are those of the present case, and it was ruled inadmissible.
2. The witness Branch, on cross-examination, was interrogated as to conversation in the presence of Collins, and as to conversation addressed to Collins. This was with a view to laying the foundation for impeaching him by the testimony of Collins. His answers, without the explanation which he was allowed to super-add, would not show that he might have been misunderstood by Collins as to the former conversation. With the explanation, the answers show plainly that Hitt did the talking or. the most of it, and that Branch responded by .nodding his head several times, without expressing himself in words. What Hitt said was pertinent to the subject-matter to which the cross-examination related, and the nodding of the head by the witness was perhaps ambiguous, meaning either that [270]*270he understood what Hitt said, or that he assented to some of it as representing' the truth of the case. The latter construction might have been put upon it by Collins, and the jury would not have known whether this was correct or not had not all the facts and circumstances of the conversation"been brought' to light as the witness detailed them. Indeed, without some of the explanation, they would not have 'even known that Branch expressed himself in this way at all. Whether Hitt was an agent of the company to talk as he did, is quite beside the question; fob the company sought tó affect the witness by the part he, the witness, took, or was supposed to have takeii, in that conversation, no matter who or what the other interlocutor was. He had a right to show what the part attributable to himself really was, and in order to do so,-under the peculiar circumstances it was 'necessary to detail all or miich of what Hitt said. The general rule as to bringing out the'whole of the’pei’ti'nent matter of a conversation where a part of it is touched upon,-is applicable to the present case with peculiar force, for here the conversation was conducted oh one side by wbrds and on the other chiefly by signs alone.
3. Hitt talked very improperly, and with an evident purpose to corrupt his host, Mr. Bránch, as a witness. Collins was with him to hear what was said, and both, it seems, weré sent by Büsh, Esq’r, one of the company’s counsel, to get up evidence to be used in the ease. It does not appear in' express' terms that the company or that Bush directed" or authorized the use of any improper means in the business of getting up evidence, but there can be no doubt that to' obtain evidence and prepare for trial is within the scope of the powers of an attorney employed in the defence of a pending case. If Bush himself had used the means [271]*271to suborn evidence which. Hitt used, the fact of his so doing would, it seems to us, have been admissible in evidence ; aiid if so, we see not why Hitt’s conduct under Bush should not be admissible; The court charged fully and fairly as to the presumption that the company was free from complicity in the unlawful and improper conduct, but left the '(question to'the'jury as to ho'wthe matter really, was, both in respect' to the agency of Hitt and his authority ■ from the company to conduct himself towards the witness as he did. There was no proof from Bush or any other witness that' Hitt had transcended his' authority, and this, together with all the facts and circumstances, could be considered by the jury. The evidence warranted the reference of 'the whole matter to the'jury for their appraisement of its import and value as a factor in the general case.
4. The point made that punitive damages could not be recovered, because they were not'claimed, eo nomine, is wholly without- merit. The declaration lays damages at $10,000, and alleges a tort, with circuinstances that may well be considered as an aggravation. The code, §3066, declares^ “In every tort there maybe aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wróng-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.” It certainly cannot he necessary for the plaintiff tó set out in his declaration, in so'many words, that he claims' some or all of his damages as punitivó. All he has to do is' to make a case by his pleading and evidence which’ will entitle him' tó such damages in addition to those actually sustained.
We find no error in the record save 'as indicated in the first division of this opinion.
Judgment reversed.
Sec Estell vs. The State (N. J.), 17 Ab. Rep. 118; Chicago, etc. R. R. vs. Becker (Ill.), 21 N. E. Rep. 524.