Murphy v. Board of Police Pension Fund Commissioners

COOPER, J.

Application for writ of mandate to compel the defendant, board of police pension fund commissioners, to order and direct that a monthly pension of $50 per month be paid to plaintiff from the date of the death of her deceased husband, Joseph F. Murphy, as long as she shall remain unmarried. The case was tried in the court below upon issues raised by the answer, and findings were filed, upon which judgment was ordered and entered in favor of defendant. Plaintiff made a motion for a new trial, which was denied, and this appeal is from the order denying the plaintiff’s motion.

[469]

Error is claimed in respect to the rulings of the court in sustaining two objections to questions asked by plaintiff of her own witnesses during the trial. The theory and claim of plaintiff was that her deceased husband was killed while in the actual performance of his duties as a member of the police department, by receiving severe internal injuries while arresting an offender against the laws. Harry Seguin, a witness called by plaintiff, testified that he was standing near Ninth street when he heard the call of a police whistle; that he walked down Harrison street, past Eighth street, past Chesley street, until he came near to Langdon street, a distance of over three hundred feet, when he saw Murphy, plaintiff’s husband, bending over, holding his side, and supported by two men; that while walking down Harrison street from Ninth street he saw three men run down Harrison street from Ninth street; that when he arrived at the point on Harrison street where Murphy was standing the three men he saw running had passed out of sight. The witness wás then asked to state what Murphy said to him at that time as to what was the matter with him. The question was objected to upon the ground that it was hearsay and no part of the

res gestae,

and the court sustained the objection. The ruling was not erroneous. The evidence sought to be elicited was purely hearsay. It could not, under well-settled principles of evidence, be binding upon defendant. If Murphy had received injuries from the men who were seen running away, it would seem that plaintiff could have proven it without the evidence of Murphy’s statement of a transaction that had ended and been completed. Murphy was not under oath. The defendant was not present. The statement was made, if made at all, after Murphy had been injured, if he had been injured.