Erickson v. Smith

By the court,

The questions presented for decision upon this appeal arise under the rulings of the court before which the trial was had concerning the admission and rejection of evidence. The first of these, in importance is that which related to the certificate of inspection of the steamboat on which the explosion' 'took' place. That inspection and certificate were made on the 25th day

But whether it was made under one or both of these acts is a matter of not the least importance upon the present occasion, because that does not affect the disposition of the questions raised upon the trial. The substantial reasons, if any exist for allowing any greater force or effect to the certificate than it was allowed to have upon the trial, depend upon the act of 1852.

For under that of 1838, the inspectors were not required to ascertain and certify to facts within their own personal observation, but were permitted to obtain them from other sources and then to embody them in their certificate. This was to ascertain a statement of the age of the boat, when and where she was built and the length of time she had been running, whether in their opinion the boat was sound, seaworthy and fit to be used for the transportation of freight or passengers, and whether in their opinion the boilers were sound and fit for use, to which was required to be added a statement of the age of the boilers. (U. S., Statutes at Large, Vol, 5, 305, 4, 5).

' From the nature of the duty imposed by this act, it is clear, that they were required to state no fact beyond that of inspection alone. For all the other matters required to be contained in the certificate consisted of the opinions of the inspectors concerning the condition of the boat and her boilers, and of facts necessarily derived from information acquired from other persons. And for those reasons it could not when made, be competent evidence in an action between her owners and other persons in no way connected with the examination, inspection and certificate made.

But the act of 1852, is more comprehensive as well as

They were also required to satisfy themselves that the boilers, flues and other machinery connected with them, in other respects were in such a condition as to render them capable of being safely used in the business in which the steamboat was to be employed, and were prohibited from approving any boiler or pipe made wholly or partially of bad material, unsafe in its form, or dangerous from defective workmanship, age, use, or any other cause. And after making such inspection in detail if they approved of the steamboat, they were then required to make and subscribe a certificate to the collector of the district, in the form prescribed by the act. This certificate enumerating- and describing the boilers and machinery found on board the steamboat, and her accommodations and capacity, was also required to contain the statement that she was in all respects staunch, seaworthy and in good condition for navigation, and that it was their deliberate conviction, founded on the inspection made by them, that she could be employed

This inspection and certificate were rendered necessary for the purpose of entitling the master and owners of the boat to the papers required by and enabling her to engage in the business of navigation under the laws of the United States, (Id., 61, § 1). And to that extent the certificate necessarily became conclusive upon the officer whose furture conduct was required to be based upon it. But beyond the effect to be given to it, which must be implied from that circumstance, the act contains nothing giving it the nature or character of evidence, in controversies between the owners of the steamboat and third persons, involving the condition of her boilers and machinery.

As proof of the fact that the inspection had been made in the manner prescribed by the statute and the law so far had been complied with, it may very well be that it was competent evidence. And for that purpose it was received upon the trial of the present action. This was clearly the understanding of the court. For when it was alluded to in the charge, it was stated that it had been admitted for the purpose of allowing the defendants to show that they had caused the engine to be inspected, and the certificate to be given which the act of congress required in order to allow them to run the boat. Beyond that certainly, from the nature of the duties to be performed, and the form of the certificate required to be given, by the inspectors, its effect as evidence ought not to be extended. They were required to do certain things by way of performing their duties, and that they did them, and in the mode prescribed by the statue, presumptively followed from the fact of the inspection itself.

By allowing the certificate to be used as evidence of the

The statement of the ruling is that the certificate was received as evidence showing the inspection, but not. as evidence of the facts recited in it. Which was entirely accurate, whether it included more or less than has already been supposed' to,have been within the ruling; for it is very well settled that the recitals contained in an instrument, are never evidence against a stranger to it, as the plaintiff in this case most clearly was. (2 Cowen & Hill’s, Notes, 3 ed., 453, and cases there cited).

The authorities referred to by the defendants counsel.do not warrant the conclusion that this certificate should have had any greater force than was given to it as evidence upon the trial of this cause. The rule stated by Starkie, (Vol., 1 173,) is entirely unsupported by the case cited by him as sanctioning it. And he himself appears to have doubted its accuracy, for he has followed his reference to the case, on which he asserted it, with a query; upon consulting it, this case will be found to contain nothing whatever indicating the propriety of such a doctrine. (See Butt agt. Ward, Winch, 70). And the principle previously mentioned by

For he says, u that neither the declarations nor any other acts of those who are mere strangers, or, as it is usually termed, any ‘ res inter alios acta,’ is admisible in evidence against any one, as affording a presumption against him, in the way of admission or otherwise. In general it would be contrary to the first and most obvious principles of justice, that any one should be bound by the acts, or concluded by the declarations, or, assertions of others to which he was nowise privy. Hence it is that no man is bound by any decree or judgment as to any matter of private right litigated in a suit to which he was not privy.” (Starkie on Evidence, Part 1, § .32.)

In the case of Clintsman agt. Northrop, ( 8 Cow., 45 ,) the question was not considered how far the act of the inspector of the leather was evidence against the defendant. But it was held that it was not conclusive, as the court upon the trial had held it to be. And that was all that was decided on that occasion. And no more than that was decided in the case of People agt. Peck, ( 11 Wend., 604 ). The decision was that the certificate was evidence but to what extent it was deemed to be so was not stated. And besides the circumstances under which that certificate was made were more favorable to its admissibility as evidence than those which existed in this case. For when legally and properly given it necessarily constitutes the evidence contempleted by the statute of the election of the trustees. In the case of Jack agt. Martin, ( 12 Wend., 311 ,) the effect to be given to the certificate was expressly declared by the act of congress under which it was made, and precisely that, and nothing beyond it, was given to it in that case. The cases of the United Slates agt. Bauner, (1 Baldvvin, 234,

Where a public officer may be required by law to make a return, and his acts included in the return aftewards become involved in controversy, there it may be used as evidence. But where no return is required by law to be made, the certificate of the officer, is not evidence either for himself, or in behalf of any other person not using it as an admission against him. The rule upon that subject has been stated to be that, “ where the law has made it the duty of a public officer to make a return of his doings, and has made him responsible for the truth of his return, a return may be evidence.” (Stephen agt. Clements, 2 N. H., 390 , 391). And this has been approved in the cases of (Hathaway agt. Goodrich, 5 Vert., 65; Oakes agt Hill, 14 Pick., 442 , 448). But the obligation imposed upon the inspectors of returning their certificate to the collector, was not such a return as this rule contemplates.

The rule contained in Greenleaf on this subject is stated to be that: “ In regard to certificates, given by persons in official station, the general rule is, that the law never allows a certificate of a mere matter of fact, not coupled with any matter of law, to be admitted as evidence.” (1 Greenleaf, § 498). This statement of the law is exceedingly indefinite and unsatisfactory, but still it affords no support to the case presented by the defendants. In the People agt. Minck, ( 21 N. Y., 539 ,) the inspectors return was held to be evidence because the general principles embodied in the

The objection taken to the question put to the witness Beach, as to what would have been the indications of a person was suffocated and afterwards falls, or is thrown overboard, was somewhat singular and peculiar. It was that there was no evidence to show that the deceased had been thrown overboard, and there is no pretence that she was. As the plaintiffs right to propound this question did not depend entirely upon that circumstance, there was no impropriety in allowing the question to be answered. The objection that the opinion of the witness was incompetent was not included in the ground taken at the trial.

The witness Veitch, after having been examined by the defendant’s counsel relative to the appearance of a young man, that had been on board the same steamboat, at the time of the explosion, and was afterwards found in the water, was asked by the plaintiff’s counsel whether his face was different from the face of the intestate. This inquiry was objected to by the defendant’s counsel and allowed to be answered by the court. There was no impropriety in this ruling, because the subject had been opened and the question invited by the course taken upon the cross-examination of the witness. But if there had been, the defendants would be unable to render it of any service to their defense, because the objection was not made so specific as to indicate any particular reason why the question should not be answered, and in addition to that the witness gave no evidence by his answer which could possibly prejudice them.

The same deficiency is also found in the objection taken to the question asked concerning the answer given by the plaintiff’s witness upon his examination before the coroner. It was too general to be of any service to the defendants

The evidence given upon the trial rendered the questions arising upon its effect, those of tact proper for the consideration and decision of the jury. ■ The court was therefore right in declining to non-suit the plaintiff The judgment should be affirmed.

Horn The copy of the above opinion, from which we published, is certified in the following manner, to wit: “ A copy, but not for publication, S. Hand, State Reporter, Rees $3.50.17 (The price of 1st Vol., Hand, is $2.50). Whether any fees are included in the above amount of $3.50, for the above preliminary injunction, issued against the attorney who procured this certified copy, or whether such fees are to be ascertained on a reference, for a violation of the injunction, does not appear. However that may be, the attorney in this case is more fortunate in procuring a copy of the opinion, on any terms, than another attorney of H. Y. City, was last Summer, when the court was being held here; as the latter applied to the reporter for a copy of an opinion in a cause in which he was concerned, and in conversation, very innocently remarked that he intended to give it to Howard for publication, (supposing there were points in it which ought to be published in Howard's Pr. Pep's.,) whereupon, he was utterly refused a copy, although the attorney offered to pay the reporter his fees therefor, at once.. Whether the attorney ever succeeded in getting a copy we never learned, but we did learn of the transaction at the time, and concluded then that if the reporter had decided to monopolize and control the publication of the opinions of the court of appeals, he had undertaken a “big job”; but thought, as he was newly appointed that a little experience and reflection would correct his views on that subject; the result however, seems to be quite otherwise; for, although there is a condescension to allow attorneys to have copies of opinions, they are formally and strictly enjoined that they are not to be used for publication.

How, we believe that under the amended judiciary article in the constitution adopted in 1869, the court of appeals have the power of appointment and removal of the reporter of that court, and it would seem that this provision in the new judiciary article will not go into effect any too soon, to save the rights of the profession, if not the reputation of the court, by prohibiting a self consequential official from assuming to insert an unconstitutional addendum to every opinion certified from that court. (BepJ.