Mr. Justice CLIFFORD, dissenting.
Questions as to the rules of evidence 'are of vest importance to all orders and conditions of men' interested therein, as parties in common law suits, as life, liberty, and property depend very largely upon their strict observance, that proper testimony, pertinent to the issue, may not be excluded, and that incompetent and improper testimony may not be received.
'One of these rules,' says Chief Justice Marshall, 'is that hearsay evidence is, in its own nature, inadmissible. Not only because it supposes that better testimony might be adduced to prove the alleged fact, but on account of its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practised under its color.' Experience shows that wrong verdicts are the usual result of wrong rulings in admitting improper testimony, or in rejecting that which was competent and material. Appellate courts, viewing the matter in that light, are therefore prompt to correct such errors and to reverse judgments founded on verdicts produced or influenced by such erroneous rulings.
All courts agree, that the introduction of evidence to the jury is governed by certain fixed principles of law, and text writers usually treat the subject under four general heads: 1. That the evidence must correspond with the allegations and be confined to the issue. 2. That the substance of the declaration must be proved to warrant a verdict in favor of the plaintiff. 3. That the burden of proving a proposition or issue lies on the party holding the affirmative. 4. That the best evidence, of which the case in its nature is susceptible, must always be produced.
Founded, as the action is, upon a policy of insurance, it becomes necessary, in order to understand the precise bearing of the rulings embraced in the exceptions, to examine the terms of the contract, and to refer to the exact issue tendered in the declaration. By the terms of the policy, insurance, for the period of one year, in the sum of five thousand dollars, was granted by the defendants to the late husband of the plaintiff, against 'personal injury caused by any accidents within the meaning of this policy.' . . . and such injuries as shall occasion death within three months from the happening thereof, and also against any such personal injury, though not fatal, if the assured was thereby absolutely and totally disabled from the prosecution of his usual employment. After setting out the policy in full, the declaration alleges that the assured, on the 1st of July in the same year, 'accidentally fell down a pair of stairs in the city of Chicago, in said county, and was severly injured thereby,' and that the assured, within three months after the happening of the said accident, died, and that the death of the assured 'was occasioned by said injury and accident.'
Defendants appeared and pleaded that they never promised in manner and form, as alleged in the declaration, which presented the direct issue, whether the assured met with the accident and injury described in the declaration, and whether his death was occasioned by 'the personal injuries caused' by that accident, as therein alleged. Payment of the sum insured, in case of such personal injury or death occasioned by any accident within the terms of the policy, was to be made to the plaintiff, and she was examined as a witness to support her claim against the defendant corporation.
Several witnesses 'testified as to back stairs being there, leading to the back yard,' but no witness testified that he saw the deceased fall down the steps,' and there was no testimony upon the subject, except that given by the plaintiff and the son of the deceased, as recited in the bill of exceptions. She testified, that between twelve and one o'clock, (July 18, 1866), he (her husband) got up and went down stairs for the purpose described; that she did not know how long he was gone, but 'when he came back, he said he had fallen down the stairs and almost killed himself; that he had hit and hurt the back part of his head in falling down the stairs which led out back.'
Objection was duly taken to the testimony of the witness as to the declarations of the husband, but the court overruled the objection, and the defendants then and there excepted.
His son was also examined and testified, that he saw his father, about twelve o'clock that night, lying with his head on the counter, and that 'he asked him what was the matter, and he answered, that he had fallen down the back stairs and hurt himself very bad.' Seasonable objection was also made to the introduction of this testimony, but the court admitted it, and the defendant excepted, as appears by the transcript.