Traver v. Smolik

43 App. D.C. 150, 1915 U.S. App. LEXIS 2584

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 1, 1915
• Docket: No. 2708
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Error is assigned in the admission of a statement made by plaintiff to the witness Brooks on her return to her employer’s house. Witness testified that, when plaintiff returned to the shop from defendant’s house, “she was half crying and sort of limping; ” that she stated to witness, “I am hurt, the man has ■thrown me out.” It was error to admit this statement over the objection of defendant’s counsel. The statement was self-serving, and could only be held admissible on the theory that it was part of the res gestee. "While the exact time which elapsed between. the commission of the alleged assault and the making of the statement does not appear, it was shown that plaintiff had to walk several blocks from defendant’s house to her place of employment. Under these conditions, the statement became mere hearsay, and was, therefore, inadmissible. McCarrick v. Kealy, 70 Conn. 642, 40 Atl. 603, 4 Am. Neg. Rep. 364; Metropolitan R. Co. v. Collins, 1 App. D. C. 383, 386; Washington & G. R. Co. v. McLane, 11 App. D. C. 220. In the latter case, the court, distinguishing between spontaneous statements which are admissible as part of the res gestee and statements merely narrative of the transaction, said: “But though we think the declarations made by the boy at the place of the accident were admissible, we think the declarations made by him in the ambulance on the way' to the hospital, in answer to the questions addressed to him by the officer in charge of the ambulance, could hardly' be justified by the cases. He had then been Removed from the scene of the accident, and his statement to the officer was of the character of a narrative of a past occurrence.”

The admission of this statement was highly prejudicial to defendant. The evidence was very evenly balanced. The testimony of plaintiff alone as to the commission of the alleged assault was denied by both defendant and her butler. The effect of the admission of this statement was to make the witness Brooks a corroborating witness as to the commission of the assault. The rule announced in Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 30 L. ed. 299, 7 Sup. Ct. Rep. 118, applies here: “It is well settled that a reversal will be directed unless it appears, beyond doubt, that the error complained of did not and could not have prejudiced the rights of the parties. Smith v. Shoemaker, 17 Wall. 630, 639, 21 L. ed. 717, 719; Deery v. Cray, 5 Wall. 795, 18 L. ed. 653; Moores v. Citizens’ Nat. Bank, 104 U. S. 625, 630, 26 L. ed. 870, 872; Gilmer v. Higley, 110 U. S. 47, 50, 28 L. ed. 62, 63, 3 Sup. Ct. Rep. 471.”

The second assignment of error goes to the competency of the testimony of the witness Smith, who testified “that in dune, 1910, he was employed byr the Postal Telegraph Company, of this city, as a messenger boy. That -within a week of June 25, 1910, as such messenger boy, he took a package from the said dressmaking establishment of said Madam Adele to the house of said defendant, with instructions to deliver the same and collect therefor. That at the door of defendant’s home he was met by a servant, who took the package and returned to the door and told witness to tell Madam Adele that the defendant stated she would go down and settle for it in person, and thereupon said servant shut said door in his face.” This testimony related to .a matter entirely foreign to the present case. Error in its admission is so apparent that we will not consume time with its consideration.

The third assignment of error is to the admission of the testimony of a physician to the effect that plaintiff consulted him about sixteen months after the date of the alleged assault, when “at that time he found no evidences of injuries except a slight impairment in the movement of one shoulder and that said plaintiff complained of pain in her shoulder. Witness further testified that he found a scar on one of plaintiff’s knees. That the condition of her shoulder might have been caused by a blow.” An examination of the record fails to disclose any evidence on the part of plaintiff to the effect that, as the result of the alleged assault, she suffered injuries to her shoulder, or that the scar on her knees resulted from the alleged assault. Neither is there any claim of such injury set out in the declaration. The physician does not presume to say that the injury he found resulted from the assault. Had the hiatris been supplied by the testimony of plaintiff, or witnesses on her behalf, there would still have been a serious question as to the competency of this evidence; but, in the absence of any connection being shown between the injuries alleged to have been received by plaintiff, and the injuries testified to by the physician, the evidence was clearly inadmissible.

The fourth assignment of error is to an instruction by the court that the jury might take into consideration the “pecuniary circumstances of the defendant, and award the plaintiff such damages as will, under all the circumstances of the case, compensate for tlie injury to tlie person and feelings suffered by Miss Smolik by reason of the unlawful act of the defendant, if they shall find that defendant assaulted and struck her; and if they further find that the female plaintiff was treated with reckless violence and indignity by the defendant and her colored butler, acting under and by her directions, then they may award such further damages as they may think proper from all the evidence to punish such conduct, and deter defendant from like conduct in the future.”

Undoubtedly it was error to instruct the jury that the pecuniary circumstances of defendant could be considered in assessing compensatory damages. But were there no other error in the case, this assignment would not be considered, for the reason that proper objection was not made in the court below. After the court had concluded its instructions to the jury, the record discloses the following: “And thereupon the court gave such instructions, which instructions were by the court, without modification or qualification, read to the jury in its charge, to the granting of which said instructions, and each of them, the defendant, by her counsel, then and there duly excepted and prayed the court to note the same upon its minutes, which was done.” Appellate courts look with disfavor upon general exceptions which fail to assign the specific grounds of objection. Here, twro instructions were given involving a series of subjects, all of which, with this single exception, were correct. It is now sought, without opportunity afforded the court below to correct its error, to select a single sentence of the instructions, and predicate reversible error upon it. While a proper exception is always available to a litigant to preserve his rights on appeal, he will not be permitted to convert the right into a deceptive agency to be used, if occasion requires, for the purpose of securing a new trial. It is always incumbent upon counsel to clearly state his objections, and to accurately point out, not only the portion of the instructions objected to, but the specific ground of objection, so that the trial court may have an opportunity to correct the error. Bell v. Sheridan, 21 D. C. 370; De Forest, v. United States, 11 App. D. C. 458; Wheeler v. Sedgwick, 94 U. , 24 L. ed. 31; Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487, 1 Am. Neg. Cas. 375; Burton v. West Jersey Ferry Co. 114 U. S. 474, 29 L. ed. 215, 5 Sup. Ct. Rep. 960, 10 Am. Neg. Cas. 568; Van Stone v. Stillwell & B. Mfg. Co. 142 U. S. 128, 35 L. ed. 961, 12 Sup. Ct. Rep. 181; Holloway v. Dunham, 170 U. S. 615, 42 L. ed. 1165, 18 Sup. Ct. Rep. 784.

We have reviewed all of the errors assigned by counsel for defendant, and they seem to be ample to justify a reversal. The judgment is therefore reversed with costs, and the cause remanded with directions to grant a new trial.

Reversed and, remanded.