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U.S. Supreme Court

Insurance Company v. Mosley, 75 U.S. 8 Wall. 397 397 (1869)

Insurance Company v. Mosley

75 U.S. (8 Wall.) 397


l. The declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present existing pain or malady, to prove his condition, ills, pains, and symptoms, whether arising from sickness, or from an injury by accident or violence. If made to a medical attendant, they are of more weight than if made to another person.

2. So is a declaration made by a deceased person, contemporaneously or nearly so, with a main event by whose consequence it is alleged that be died, as to the cause of that event. Though generally the declarations must be contemporaneous with the event, yet where there are connecting circumstances, they may, even when made some time afterwards, form a part of the whole res gestae.

3. Where the principal fact is the fact of bodily injury, the res gestae are the statements of the cause made by the injured party almost contemporaneously with the occurrence of the injury, and those relating to the consequences made while the latter subsisted and were in progress.

The Travelers' Insurance Company of Chicago insured the life of one Mosley for $5,000 in favor of his wife.

"Within ninety days, after sufficient proof that the assured at any time within twelve months after the date of this policy shall have sustained personal injury, caused by any accident within the meaning of this policy and the conditions hereunto annexed, and such injuries shall occasion death within three months from the happening thereof."

The policy among other provisos contained this one:

"Provided always that no claim shall be made under this policy by the said assured in respect of any injury unless the same shall be caused by some outward and visible means, of which proof satisfactory to the company can be furnished, and this insurance

Page 75 U. S. 398

shall not extend to any injury caused by or arising from natural disease."

Mosley having died within the term for which his life was insured, his wife, who alleged that he had died from personal injury, caused by accident, demanded the $5,000 of the company, which they declined to pay. She thereupon brought assumpsit on the policy. The declaration alleged that on the 21st of July, 1866, the said Mosley

"accidentally fell down a pair of stairs and was severely injured thereby, and that he, within three months after the happening of the said accident, to-wit &c., died from the effects of the said accidental fall, and that the death was occasioned by the said injury and accident, and that the defendant had sufficient proof of said accident and death ninety days before the commencement of this suit."

On a plea of the general issue and a trial before a jury, the main point in question was the cause of the death of Mr. Mosley, the plaintiff contending that it was the consequence of a fall that he met with in going into his back yard on the night between the 18th and 19th of July, 1866, and the defendant, that it was not.

It appeared that Mr. Mosley was in his usual health until that night; that he and Mrs. Mosley had gone to bed; that between 12 and 1 o'clock he got up and went down stairs; that he came up and complained to his wife and son of having had a fall; and that the symptoms were described by him at the time; that he continued ill until Monday, the 22d, when he died. There was testimony, medical and other, given of his mental and bodily condition from the time of the alleged accident up to the time of his death; there was also medical testimony given of his condition after death, and of an examination of the cranium and brain, externally and internally. The plaintiff insisted that the evidence she introduced tended to show that Mr. Mosley died in consequence of the fall before referred to, and the defendant insisted that the evidence introduced by the company tended to show that death was not caused by any fall, but was in consequence of disease (congestion of the brain). chanrobles.com-red

Page 75 U. S. 399

Mrs. Mosley testified in her own behalf that on Wednesday night, the 18th of July, 1866, she and her husband had gone to bed. Between twelve and one o'clock, he got up and went down stairs for the purpose of going out back; she didn't know how long he was gone. When he came back. he said he had fallen down the back stairs and almost killed himself; that he had hit and hurt the back of his head in falling down the stairs which led out back. She noticed that his voice trembled, and she inquired into the matter at once. He complained of his head, and appeared faint and vomited; he threw up almost as soon as he got into the room; she got up, and he laid down on the sofa. He had nothing on but his pataloons and vest; she didn't sleep any more that night, and was up with him all night. He complained and appeared to be in great pain. She asked him if she should send for Dr. Webster, who lived near, but he said no, he thought he should be better, and she did not then call the Doctor. On Thursday morning he said he felt bad, and there was a recurrence of fainting.

To all that portion of the testimony of Mrs. Mosley which set forth the declarations of her husband about his falling down the back stairs and almost killing himself and hurting the back part of his head the defendant's counsel objected, and their objection being overruled, the defendant excepted.

A son of the assured, testified in behalf of the plaintiff,

"that he slept in the lower part of the building occupied by his father; that about 12 o'clock of the night before mentioned, he saw his father lying with his head on the counter, and asked him what was the matter; he replied that he had fallen down the back stairs and hurt himself very badly."

The defendants objected to both the question and answer. An exception to their admission followed.

The same witness testified further

"that on the day after the fall, his father said he felt very badly, and that if he attempted to walk across the room his head became dizzy; on the following day he said he was a little worse, if anything."

The admission of this testimony also was excepted to by the defendants. chanrobles.com-red

Page 75 U. S. 400

There was no witness who testified that he saw the deceased fall down stairs, though several did, that there were such back stairs as it was testified that he spoke of falling down.

Verdict and judgment having been given for the plaintiff, and the case being here, the questions as presented by the bill of exceptions were:

1. Whether the court erred in admitting the declarations of the assured as to his bodily injuries and pains?

2. Whether it erred in admitting such declarations to prove that he had fallen down the stairs? chanrobles.com-red

Page 75 U. S. 403


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