Shepard v. United States, 290 U.S. 96 (1933)
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U.S. Supreme Court SHEPARD v. U.S., 290 U.S. 96 (1933)
[Page 290 U.S. 96, 105]
571, 572, 573, 21 S.Ct. 474; Waterman v. Whitney, 11 N.Y. 157, 62 Am.Dec. 71; Matter of Kennedy, 167 N.Y. 163, 172, 60 N.E. 442. In suits for the alienation of affections, letters passing between the spouses are admissible in aid of a like purpose. Wigmore, 1730; Ash v. Prunier (C.C.A.) 105 F. 722; Mutual Life Ins. Co. v. Hillmon, supra, page 297 of 145 U.S., 12 S.Ct. 909; Jameson v. Tully, 178 Cal. 380, 173 P. 577; Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769; Curtis v. Miller, 269 Pa. 509, 512, 112 A. 747. In damage suits for personal injuries, declarations by the patient to bystanders or physicians are evidence of sufferings or symptoms (Wigmore, 1718, 1719), but are not received to prove the acts, the external circumstances, through which the injuries came about. Wigmore , 1722; Amys v. Barton, (1912) 1 K.B. 40; Chicago & A.R.R. Co. v. Industrial Board, 274 Ill. 336, 113 N.E. 629; Peoria Cordage Co. v. Industrial Board, 284 Ill. 90, 119 N.E. 996, L.R.A. 1918E, 822; Larrabee's Case, 120 Me. 242, 113 A. 268; Maine v. Maryland Casualty Co., 172 Wis. 350, 178 N.W. 749, 15 A.L.R. 1536. Even statements of past sufferings or symptoms are generally excluded (Wigmore, 1722(b); Cashin v. New York, N. H. & H.R.R. Co., 185 Mass. 543, 70 N.E. 930), though an exception is at times allowed when they are made to a physician (Roosa v. Loan Co., 132 Mass. 439, 440; Cleveland, C., C. & I.R. Co. v. Newell, 104 Ind. 264, 271, 3 N.E. 836, 54 Am.Rep. 312; contra, Davidson v. Cornell, 132 N.Y. 228, 237, 30 N.E. 573). So also in suits upon insurance policies, declarations by an insured that he intends to go upon a journey with another may be evidence of a state of mind lending probability to the conclusion that the purpose was fulfilled. Mutual Life Ins. Co. v. Hillmon, supra. The ruling in that case marks the high-water line beyond which courts have been unwilling to go. It has developed a substantial body of criticism and commentary. [Footnote 1] Decla-
[Page 290 U.S. 96, 106]
rations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored.
The testimony now questioned faced backward and not forward. This at least it did in its most obvious implications. What is even more important, it spoke to a past act, and, more than that, to an act by some one not the speaker. Other tendency, if it had any, was a filament too fine to be disentangled by a jury.
The judgment should be reversed and the cause remanded to the District Court for further proceedings in accordance with this opinion.
Reversed. Footnotes
Footnote 1 Maguire, The Hillmon Case, 38 Harvard Law Review, 709, 721, 727; Seligman, An Exception to the Hearsay Rule, 26 Harvard Law Review, 146; Chafee, Review of Wigmore's Treatise, 37 Harvard Law Review, 513, 519.
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