THROCKMORTON

v.

ST. LOUIS-SAN FRANCISCO RY. CO.

SANBORN, Circuit Judge.

This is an appeal from a judgment for the defendant (appellee) entered upon the verdict of a jury in an action brought by a former switchman of the defendant under the Federal Employers’ Liability Act, 45 U. S.C.A. § 51 et seq., to recover for injuries alleged to be due to a violation by the defendant of the Federal Safety Appliance Act, 45 U.S.C.A. §• 11.

The accident, in which the plaintiff (appellant) lost both of his legs below the knees, occurred in the early morning of June 12, 1948, on a track of the defendant at Springfield, Missouri. In his complaint the plaintiff alleged, in substance, that, while performing his duties as a switchman for the defendant, he tightened and set a hand brake on a moving tank car and was thrown from the car onto the track, due to the fact that the brake was defective and that the wheel of the brake revolved violently in reverse after the brake had been set. The defendant in its answer denied liability, but admitted that the plaintiff, at the time of the accident, was in its employ, that the accident occurred, and that he was injured.

The plaintiff’s evidence tended to establish his claim that the accident and his injuries were the result of the hand brake he was using being defective and throwing him from the car. The defendant’s evidence tended to show that the brake in question was not defective, but was in good operating condition; that shortly after the accident it was found to have been set, and that the plaintiff’s injuries could not have been caused by a defect in the brake.

The issues submitted to the jury were, in substance, whether the brake was defective, and whether, if it was, that was the proximate cause of the plaintiff’s injuries. The jury by its verdict resolved one or both of these issues in favor of the defendant.

The validity of the judgment is challenged on the grounds: (1) that the court excluded competent evidence; (2) that the court was unfair; (3) that counsel for the defendant was guilty of misconduct in his argument to the jury; and (4) that the court abused its discretion in denying the plaintiff’s motion for a new trial.

1.

The plaintiff, who at the trial was one of the first witnesses called, testified as to how the accident happened. He stated, on direct examination, that the ambulance arrived probably about fifteen minutes after he was run over, and that, prior to its arrival, he had said nothing to anyone as to how the accident happened; that when the ambulance arrived and he was taken from under the car, he “said something to Mr. Nunn” [later shown to be a car inspector for the defendant]. The plaintiff’s counsel then remarked: “Well, tell the Court and jury what was said.” The defendant objected, and the court sustained the objection. This it is claimed was error. No offer of proof was made, and the court was not advised as to what it was claimed the plaintiff had said to Mr. Nunn. On the cross-examination of Alvin J. Nunn, who testified as a witness for the defendant, he was asked: “Did you after, just as soon as he was loaded in' the ambulance, talk to Jimmie [the plaintiff] ? ” The answer was, “No, sir.” The plaintiff was called to the stand in rebuttal, but was not again asked whether he had said anything to Nunn. It thus appears that throughout the trial the court was not informed that the plaintiff claimed that, at or near the time he was injured, he had made a statement to Nunn which related to the cause of the accident or which would have been admissible on any theory.

After the trial and upon the argument of the plaintiff’s motion for a new trial, it was asserted that if the plaintiff had been permitted to tell what he claimed he said to Nunn, he would have testified that he told Nunn to “look at that brake, it knocked me off .” It is to be noted that the statement of plaintiff’s counsel to the plaintiff, “Well, tell the Court and jury what was said,” furnished no clue as to what answer was intended to be elicited or upon what theory the plaintiff claimed that the answer would be admissible'. After the court sustained the defendant’s objection, counsel for the plaintiff did not pursue the matter further, but said: “All right then. I believe that is all at this time.” Under the circumstances, assuming the admissibility of the evidence excluded, the trial judge did not err in sustaining the objection. We think, however, that testimony by the plaintiff that this self-serving declaration was made by him would not have been admissible. The plaintiff had, under oath, already given his version of the cause of the accident.

The exact question here presented was considered by the Supreme Court of Minnesota in Perkins v. Great Northern Railway Co., 152 Minn. 226, 188 N.W. 564. The court said, page 567 of 188 N.W.: “ * * * Plaintiff had testified fully to the circumstances under which he was injured. The jury had his sworn statement. He was not impeached by proof of contrary statements out of court. In effect he was permitted to give in evidence his unsworn self-serving declaration otherwise clearly inadmissible on the theory that because the declaration was part of the res gestae he might testify that he had made it, and that, 'if made, it tended to prove that the facts were as he had related them from the witness stand. In support of this theory, it may be argued that the law permits one who heard the spontaneous utterance of a party to testify to it and hence there is no good reason why the party himself may not testify to his own exclamations. * * * So far as we have discovered, it has never been held that a party may bolster up his case by testimony that he made a self-serving declaration so closely connected with an injury he received as to be part of the res gestae, and a court should be reluctant to adopt a rule of evidence which would tempt a party accidentally injured to make evidence for himself. * * * In no state has the res gestae doctrine been extended farther than in Minnesota. The extension now proposed would not serve the purpose of getting at the truth, which is the sole end towards which all rules' of evidence should be directed. *' * * ”

The Supreme Court of Minnesota again considered the question in Fischer v. Chicago and Northwestern Railway Co., 193 Minn. 73, 258 N.W.⁴, and again held such evidence inadmissible, upon the authority of the Perkins case.

It is contended that the trial court erred in excluding from evidence a letter written on September 16, 1948, by the plaintiff to the Continental Casualty Company, in which he had a policy of accident insurance The letter reads as follows:

“Sept. 16, 1948 St. Johns Hospital Springfield, Mo,

“Dear Sir:

“I received a letter from you all the other day wanting to know how I got hurt. Well as you all know I am a switchman for the S. L. S. F. Railroad. Well that night I got hurt I was sitting a hand brake when it spun me off in to the middle of the tracks. Therefore the cars cutting my legs off & breaking my right leg all soi “Yours truly,

“Johnie Throckmorton.”

The theory upon which the plaintiff asserts that this letter was admissible is that there had been received in evidence an “Affidavit of Claimant for Indemnity for Limb Loss,” signed by the plaintiff and dated July 27, 1948, which, opposite the question, “How did accident happen ? ” contained the answer “Don’t know.” The record shows that the defendant, during the cross-examination of the plaintiff, interrogated the plaintiff as to whether his signature appeared upon the affidavit, and as to whether he gave “the answer that is on the paper.” The plaintiff testified, in effect, that he did not make the statement in the affidavit which indicated that he did not know how the accident happened, and that he did not fill in the answers to the questions contained in the affidavit, but that he might have signed it. The defendant did not introduce the affidavit in evidence or exhibit it to the jury, and counsel for the plaintiff then introduced it in evidence and handed it to the jury. After its introduction, the plaintiff called the agent who had written the policy, and, on direct examination, he testified that he had filled out the “claimant’s statement” and put in the words, “Don’t know,” and that the plaintiff never told him that he (the plaintiff) did not know how the accident occurred. On cross-examination, the agent testified that the plaintiff refused to tell how the accident happened; that the agent filled in the words, “Don’t know,” and left the paper with the plaintiff. The plaintiff also called the at torney who had notarized the affidavit. The plaintiff, without objection, had this witness read to the jury the following letter of the Continental Casualty Company to the plaintiff, dated August 13, 1948:

“Dear Sir:

“Mr. Hubbard sent to us some statements in regard to your claim. Will you be kind enough to write on the back of this letter telling us, ‘How did the accident happen?’ I note in reply to this question on the form that you did not answer this.

“A return envelope is enclosed for your convenience.

“Yours very truly,

“R. I. Betty, chief adjuster,

“A. & H. Claim Department.”

After offering some other correspondence relative to the plaintiff’s proof of claim against the Casualty Company, the plaintiff offered the letter of September 16, 1948, in which he stated that the brake spun him off into the middle of the tracks. To the introduction of this letter the court sustained an objection based on the ground that it was self-serving.

' The plaintiff contends that the defendant opened the subject of whether the plaintiff knew how the accident happened, and was responsible for creating a serious doubt as to whether the plaintiff ever knew that the words “Don’t know” were in the affidavit; and that, under these circumstances, the court should have admitted the plaintiff’s letter of September 16, 1948. The difficulty with the plaintiff’s contention in this regard is that all that the defendant had done was to attempt to lay a possible foundation for the introduction of the affidavit, but that the defendant never introduced it or offered it. in evidence, and that any doubt as to whether the plaintiff knew that the affidavit contained a statement indicating that he did not know the cause of the accident was raised by the plaintiff himself. Under the circumstances, the self-serving letter of September 16, 1948, was, we think, properly excluded. What the plaintiff, in effect, did was to impeach himself—assuming that the affidavit constituted impeachment—and, then, to offset the effect of the impeachment, he sought to introduce in evidence a self-serving declaration contained in a letter written after this case hail been commenced. It is ’ elementary that a party cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. Leach & Company, Inc. v. Peirson, 275 U.S. 120, 128, 48 S.Ct. 57, 72 L.Ed. 194, 55 A.L.R. 457; Varley Duplex Magnet Co. v. Ostheimer,² Cir., 159 F. 655, 658; Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F. 2d 1, 8. In Affronti v. United States, 8 Cir., 145 F. 2d 3, 8, this Court said that whether there should be received in evidence prior consistent statements of a witness impeached by prior inconsistent statements is a matter resting in the sound discretion of the trial court.