BALTIMORE & O. R.
co.". ltAMBO.
75
"When. jurisdiction In the circuit conrt depends upon the subject-matter of. the action the defendant must be sued in the district of which he was an inhabitant When it depends on diversity of citizenship alone the suit may be brought in the district of residence of either party."
This section is fully considered by the supreme court in Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, and it was held that, (I quote syllabus:) "Under the act of March 3, 1887, c. 373, § I, corrected by the act of August 13, 1888, c. 866, a corporation incorporated in one state only cannot be compelled to answer, in a circuit court of the United States held in another state in which it has a usual place of business, to a civil suit at law or equity brought by a citizen of a different state."
See, also, to the same effect, Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct 44; also Adriance Platt & Co. v. McCormick, etc., Mach. Co., 55 Fed. 288. In Empire Coal & Transp. Coo. v. Empire Coal & Min. Co., 14 Sup. Ct. 66, filed in the supreme court on the 6th of this month, the dO'Ctrine is again affirmed that a corporation is a citizen of the state in which it was incorporated. The demurrer of the Singer Manufacturing Company is sustained: that of Fry is overruled. BALTIMOItE & O. It. CO. v. RAMBO. (Circuit Court of Appeals, Sixth Circuit. November 6, 1893.) No. 78. 1. OPINION EVIDENCE-TESTIMONY OF NONEXPERT-PHYSICAL CONDITION.
A nonprofessional Witness, who has attended one suffering from personal injuries, and has had opportunity to observe his condition, may testify as to his apparent· sufferings, and his expressions and acts in connection therewith. The conclusions. of such a witness fr<>m facts which he observed are not Incompetent where they are inferences from many minor details which could not be adequately presented to the jury except by the statement of such inference or opinion.
2.
SAME.
S.
WITNESS-IMPEACHMENT-CONVICTION OF INFAMOUS CRIME.
In Ohio, in civil cases, though there is no express statutory provision concerning it, preV'ious conviction of an infamous crime is relevant to impeach the credib'ility of a witness. The record of the indictment, trial, and judgment being the best evidence of a conviction for burglary, it is error to allow testimony of another that a witness pleaded guilty to such charge. In an action by a passenger against a railroad company for personal Injuries, where there is evidence tendIng to show the operation of the road by defendant at the time such injuries were sustained, defendant cannot escape liability by showing that its charter did not authorize it to operate such road, and that the ticket held by the passenger provided that defendant assumed no responsibility beyond its own line. Where. witnesses deny that they made statements that attempts had been made to bribe them, evidence to contradict such denials sImpll' goes to the credibility of the witnesses, and is incompetent as substan. tive evidence tending to show the fact of such bribery.
4.
BEST AND SECONDARY EVIDENCE-CONVICTION OF CRIME.
5.
CARRIERS-INJURY TO PASSENGEH-OPERATION OF LINE.
6.
WITNESS-CONTRADICTING.
16
FEDE;RAL ;REPORTE;R,
vol. 59.
In Error to the OircuitCourt"of the United States for the Eastern Division of Northern District of Ohio. At Law. Action by Byron O. Rambo against the Baltimore & Ohio Railroad Company for personal injuries. Verdict and judgmenttor :{)laintiff. Defendant brings error. Reversed. J. H. (}OIlins, for in error. Skiles & Skiles, for defendant in error. Before JAOKSON and TAFT, Oircuit Judges, and BARR, District Judge.
TAFT, Oircuit Judge. This was a writ of error to the judgment of the circuit court of the United States for the northern district of,Ohio, division, in favor of Rambo, the plaintiff below, against the Baltimore & Ohio Railroad Company. plaintiff alleged in his petition that the Baltimore & Ohio Railroad Company was a 'corporation under the laws of the state of Maryland, owning and Qperating a line of railroad rUnning throul!;h the county of Richland, allo.'state of Ohio; that it was a common carrier of passengers for hire between Shelby, Ohio, in Richland county, and the city of Chicago, in illinois; that on April 6, 1889, in consideration of fare paid, the defendant company received the plaintiff as a passenger at Shelby for passage to the city of Ohicago; that by reason of the negligence of the defendant in the operation of the train, and in failing to keep its track in good repair, the car in which the plaintiff was, was thrown from the track into collision with an oil tank, thereby severely injuring the plaintiff. The Baltimore & Ohio Railroad Company, in its answer, admitted that it was a corpora.tionorganized under the laws of the state of Maryland, and that it was operating a line of railroad through the county of Richland, ,Ohio, but denied all other averments in the petition. On the trial, the chief issue of faet was the extent of the plaintiff's injuries. It was contended on his behalf that he was suffering from paralysis of his left leg and the muscles of his back, so as to permanently disable him, while the defendant company maintained that he was not suffering from paralysis, but was feigning disability for the purpose of increasing- the amount of his recovery. There were called for the plaintiff medical and nonmedical witnesses, who testified to the suffering of. the plaintiff, and the character of his injuries; while the company, in addition to medical experts, called many of the neighbors of the plaintiff, who testified to bodily movements and acts of the plaintiff subsequent to the accident, impO'Ssi· bleif he in fact was suffering from paralysis. The case resulted in a: verdict for the plaintiff in the sum of $10,000. The first assignment of error is that the court erred in overruling the objectil,llls of the defendant to testimony offered by plaintiff of·. nonprofessional witnesses npon the physical condition of the plaintiff after the accident. These witnesses were in attendance upOn plaintiff during his illness, and had every opportunity to observe. his condition. One of plaintiff's witnesses was interrogated as follows: ''You may state from what you observed, being around
"BALTIMORE &:.
o.
R.· CO. V. RAMBO.
77
and about him, his condition and appearance, as to whether or not he suffered in any way." To which witness answered: "I would say, as far as I could see myself, that he Buffered as much pain as any man I ever helped to attend." Again: "During the time you attended him, where did he complain that he was suffering; that is, in what portion of his body? Answer. His stomach, his left ·side right below the ribs, and right in the center of hiB back." Again: "In what way did he act or express himself with reference to his suffering pain, in your presence? Answer. His pain was in his back, and he could not move. His body he could not move, but turned his head from side to side; and if you would touch him he would holler, 'Oh, my back!," Such evidence was clearly admissible. This is expressly ruled in the case of Insurance Co. v. Mosley, .8 Wall. 397--405, where Mr. Justice Swayne, to illustrate how declarations may be evidence as verbal acts, uses this language: "Upon the same ground the declarations of the party himself are received to prove his condition, ills, pain, and symptoms, whether arising from injuries, sickness, or accidents by violence. If made to a medical attendant, they are of more weight than if made to another person; but to whomsomade they are competent evidence. Upon this point the leading text writers of evidence, both in England and in this .country, are in accord."
It is objected also that some of the above statements are mere matter of opinion and conclusions of the witness from facts which he observed. This is true, but it does not render the statements incompetent. Where the statement of a witness is an inference from many minor details which it would be impossible for him to pre·sent in the form of a picture to the jury except by the statement of his inference or opinion, that opinion is generally competent. Parker v. Steamboat Co., 109 Mass. 449. In Village of Shelby v. Clagett, 46 Ohio St. 549, 22 N. E. 407, it was held that anonprofessiona! witness, who had had opportunities to observe a sick or injured person, might give in evidence his opinion of such person in respect of his being weak and helpless or not, and of the degree of suffering which he endured, provided such opinion was founded on his own observation of the person to whom his evidence related, and was limited to the time that the person was under his observation. The second assignment of error is that the court erred in overruling the objection of the defendant to the testimony of the plaintiff in rebuttal, offered to impeach a witness of defendant,-Straub. Straub's evidence was very important. He had nursed the plaintiff .gratuitously for a number of days and nights. He said that he saw the plaintiff walk about in his house without canes, with as much freedom as if he had suffered no injury, and that on this account he would not give a deposition for the plaintiff. For the purpose of breaking down Straub's evidence, counsel for the plaintiff asked the plaintiff in rebuttal, ''Were you at the trial when Straub was 'arrested for burglary of the hardware store? Answer, Yes, sir. 'Question. You may state to the jury whether he pleaded guilty." Counsel for defendant then objected to the question on the ground
78 that·np ,fOJlilldatiOJlha<l:been laict,for this evidencefn the cross:examina,tion ,";"straub; an4, further,. that this .was not the best evifact,;e:ven if it were competent. The court held, if the witness c9Uld that he was J,n court, and heard Straub enter a plea of be: proven independent of the record, and the. was to say that Straub had pleaded guilty. . 1'111ing was erroneous: or not depends upon two questions: , First. Was it competent in this, a civil, case, ,to impeach the credibilitY:Qfawitness by proving he had been convicted of a felony? Second. If competent, could it be shown otherwise than by the record .of the conviction? Bysecti()Jl858of the Revised statutes of the United States it is provided: "In the courts of the United States no witness shall be excluded in any action on8.ccpunt of color, or 1;u anyc1vil action because he is 8. party to or interested in the issue tried; 'Provided, that in actions by or against execor in which judgment may be rendered for utors, . or against them,neitherp'artyshall 'be allowed to testify against the other as to anytransllCtioD with or statement by the testator, intestate or ward, unless called to :test!fy theretd by the opposite party or required to testify thereto by tlie court, In aU'otlier respects the laws of the state In which the court is. helq shall be the.. rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equhy and admIralty."
The case,llt a at common law,within the meaning of this the question arises, what are the laws of Ohio governmg the cpmpetency of witnesses in reference to convictions of crime? By the laws of Ohio (section 5240, Rev. St.) "all persons are competent except thos.e of unsound mind and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined or of relating them truly." This section is a part of the Civil Code of Ohio, and relates. only to civil cases. Steen v. State, 20 Ohio St. 333. Sections 5241 and 5242 contain exceptions as to the competency of witnesses, none of which is important here. By section 7284, a section of the Criminal Code of Procedure of Ohio, it is provided that: . "No person shall be disqualified as a witness in any criminal prosecution by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of any crime; and husband and wife shall be competent to· testify on behalf of each otller in all criminal prosecutions, but such interest, conviction or relationship Iilay be shown for the purpose of affecting his or her credib1l1ty."
IUs apparent, therefQllel while in criminal cases the statute of Ohio that convictions of crime shall be relevant for the purpQliIe' of affecting the credibility of any witness, the section relating to w'itnesses.in civil cases makes no such provision. At common laWiconviction of a felOll(Yrendereda witnessinoompetent. Logan Y. U. S., 144 U. S.263, 12 Sup. Ct. 617. In nMrly all the states, this rule ()f the, common law has been abO'lished, with the
BALTIMORE 4l: O. R. CO. V. RAMBO.
79
express declaration, like that contained in section 7284, above quoted, that a conviction shall be competent evidence to affect the credibility of the witness. We have, however, found no case in Ohio or elsewhere in which the question of the relevancy of such evidence, when not expressly declared by the statute, has been raised and decided. In the case of Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, the plaintiff in elTor complained because the court below per· mitted two witnesses to testify; one of whom had been convicted of crime in North Carolina, and the other of whom had been convicted in Texas, and subsequently pardoned. The coun below, after holding the witnesses competent to testify, had allowed the records of their convictions to be introduced as evidence on the question of their credibility. The supreme court sustained the view of the court below that the witnesses were competent to testify under the rules of the common law which governed the trial of that case, on the ground that in the one case the conviction in a foreign jurisdiction was not a disqualificatiorr under the common law; and, in the other, that the arising from the conviction in Texas, where the case was tried, had been removed by a full pardon. After reaching this con· clusion Mr. Justice Gray uses these words: "Whether the conviction of either witness was admissible to affect his credibility is not before us, because the ruling on that q1,lestion was in favor of the plaintiff in error."
It is difficult to see any reason why the legislature should permit the credibility of a witness in a criminal case to be attacked by proof of former conviction, but should withhold such permission in civil cases. If the court can, "from analogies at common law, find the rule to be that in civil cases, also, the previous conviction of wit· nesses may be introduced to impeach their credibility, it is its duty to do so. It is decided in Carpenter v. Nixon, 5 Hill, 262, by the supreme court of New York, Chief Justice Nelson announcing the opinion, that the record of the conviction of a crime less than a felony was admissible at common law to impeach the credibility of witnesses; citing 2 Hale, P. C. 278; King v. Crosby, 5 Mod. 15; Huxley v. Berg, 1 Starkie, 98; 1 Phil. Ev. 35; Phil. Ev. (Cow. & H. Notes,) p. 66. Of course, the question whether a of a felony was competent at common law to impeach the credibility of a witness could not arise, because the witness was absolutely disqualified. When this disqualification is removed, however, it would seem to follow that, as the conviction of a less crime than a felony had al· ways been competent in impeachment, the conviction of a felony would, a fortiori, be relevant for the same purpose. We therefore hold that in Ohio, in civil cases, though there is no express statutory provision concerning it, previous conviction of an infamous crime is relevant to impeach the credibility of a witness. The second question is much freer from difficulty. Straub had not been asked, when on the stand, whether he had ever been convicted of burglary, and sent to the penitentiary. The question here objected to was put to another witness than Str!lub, and it was sought out of that witness' mouth to prove by oral evidence that Straub had pleaded guilty to the charge of burglary. This Wal