of the head in a very vital spot." At that point he became quite pale and said he would smoke a cigarette. He propped himself up with a pillow and smoked a cigarette and chatted with the plaintiff, and as he was putting his cigarette out in the ash tray he said "I feel impending disaster. My heart seems to be missing a beat." She urged him to let her call a doctor, but he refused and told her to go to sleep. As he was pulling the bed clothes up over himself he turned and gasped and was dead before she could step from her bed to his. She fixes the time of his death at about 11 P.M. I believe that under the circumstances of this case the testimony was properly admitted. It has been well stated in Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87, 90:
"No fixed time or distance from the main occurrence can be set up as a rule to determine what utterances shall be admitted. Each case must depend on its own circumstances. * * *
"There must be some discretion lodged in the trial court in deciding whether such evidence is receivable as part of the res gestae. In determining the admissibility of such unsworn utterances, to a great extent a matter of first impression, considering all phases, much latitude should be given to the discretion of the court below. The fundamental thought should be, Did the declarant exercise her reflective faculties in her own interest in making the statement? If she did, or if there were grounds for the suspicion of it, the court ought not to admit the evidence."
(2) On the admissibility of plaintiff's documentary evidence. Plaintiff offered in evidence the records of the Brooklyn Naval Hospital. Objection was made thereto as follows:
By Mr. Axelroth n. t. 112: "I object to it your Honor. If a hospital record is to be offered in evidence, first of all it isn't admissible under any consideration, but we don't object to the admission of the entire hospital record." Whereupon the entire record was offered. This should be complete answer to the present objection.
Plaintiff also offered the service record of the insured of the Navy Department, Bureau of Personnel. Defendants objected to this on account of relevancy. Defendants now raise the point that there was no compliance with the formalities required by this Act of Congress, 28 U.S.C.A. § 661 for admissibility, to wit, that they were not shown to be documents originating in any Executive Department of the United States, nor were the papers in question authenticated under the seals of such Departments. Defendants having at the trial objected specifically on account of relevancy cannot now raise another ground. "A specific objection overruled will be effective to the extent of the grounds specified, and no further. An objection overruled, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not." Wigmore on Evidence, Vol. 1, Sec. 18, p. 185 (emphasis in text). Morgan v. Gamble, 230 Pa. 165, 79 A. 410; Roebling's Sons Co. v. American Amusement & Construction Co., 231 Pa. 261, 80 A. 647; Danley v. Danley, 179 Pa. 170, 36 A. 225; Mills v. Buchanan, 14 Pa. 59.
(3) Defendants further contend that plaintiff's evidence as to the cause of death was contradictory and that she therefore failed to sustain the burden of proof. Defendants elicited in the cross-examination of the plaintiff that a death certificate was issued by the United States Naval Hospital which stated the principal cause of death to be "hypertensive heart disease". Plaintiff then offered in evidence the records of the Naval Hospital containing the autopsy reports (Exh. P-1, P-2, P-2a, P-2b, P-2c, P-2d) and also the certificates of death in various stages of preparation (Exh. P-4, P-5, P-6), Exhibit P-6 is a carbon copy of the certificate of death in its final form, which stated the principal cause of death to be "hypertensive heart disease." (The defendants as part of their case likewise offered a certified copy of the death certificates, Exh. Pru-2 and AM-2 which are identical to Exh. P-6.) The plaintiff also offered in evidence the decedent's medical and physical records of the Navy.
It is now defendants' contention that because plaintiff had offered in evidence the death certificate (Exh. P-6) which gave the cause of death as hypertensive heart disease, and plaintiff's expert (Dr. Klein) testified that the sole cause of death was a blow on the head, her (the plaintiff's) own testimony was contradictory and that inasmuch as the burden was on the plaintiff, she failed to maintain that burden, citing Mudano v. Philadelphia R.T. Co., 289 Pa. 51, 59, 137 A. 104. In the Mudano case the plaintiff's own experts disagreed as to the cause of death and the Court properly held that the testimony was so contradictory and conflicting as to present to the jury no basis for a finding except a mere guess. In the case at bar the defendants first elicited on cross examination the fact that a death certificate was issued giving as the principal cause of death something other than what the plaintiff asserted as the basis of her claim. It became necessary for the plaintiff to explain this. In order to do so she produced the entire record of the Naval Hospital and showed how the certificate of death was prepared. She also produced her husband's Navy medical and physical records. It was brought out by the plaintiff that neither the detailed autopsy report nor the medical and physical records were available to the hospital authorities when the death certificate was made out. Dr. Klein, the plaintiff's expert, testified that from the record available hypertensive heart disease could not have been found to be the cause of death. In fact, the defendants' expert, Dr. Rabson, stated that the cause of death was an edema of the pia, which was produced by the hardening of the arteries of the brain and could not state what agents served to start this mechanism (n. t. 442). There is no inconsistency in plaintiff's testimony, if believed, as to the cause of death. Defendant's position resolves itself to the tenuous argument that plaintiff cannot contradict the certificate of death which she herself offered in evidence. I have already pointed out that the fact contained in the certificate of death was first elicited by the defendants and that the plaintiff properly produced the facts to explain the certificates. But even if the plaintiff without the prior elicitation by the defendants, it would seem that the plaintiff would have the right to contradict or explain it. In Cockroft v. Metropolitan Life Ins. Co., 125 Pa.Super. 293, 189 A. 687, the plaintiff attempted to offer the certificate of death restricting the offer to certain facts therein contained. The Superior Court held that this was improper and that if at all the entire statement must be offered, saying (125 Pa.Super. at page 300, 189 A. at page 690): "the whole statement must be taken together, although, 'if evidence at all, it is evidence only for what it is worth * * * and concludes nobody.' Borgon v. John Hancock M. Life Ins. Co., supra, 99 Pa.Super. 377, at page 384." (Emphasis supplied.) Apart from the language of the case cited I have been unable to find any case directly in point.
In accordance with the above, I therefore make the following orders:
The motion for judgment for defendant upon motion for directed verdict is denied.
The motion to set aside verdict and judgment entered thereon and for a new trial is denied.
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