property, in disparagement of his title, or explanatory of the character of his possession, are admissible as part of the res gestæ.*

45

In an action to recover corporate stock represented by a certificate, declarations of ownership by the person, since deceased, among whose papers the certificate was found after his death, are admissible as part of the res gestæ to explain his possession of the certificate.46

§ 991. Injury and pain

No definite rule can be laid down as to the preliminary evidence requisite before admitting declarations of a party as to present pain or suffering.47

Declarations by plaintiff, made immediately after an accident, as to the part of the body in which she was hurt are admissible.48 Declarations of a party with regard to a present and existing pain or suffering, or with regard to the present condition of the body or mind, may generally be shown by any person who heard the same.* Declarations made by an injured employé after the accident, if wanting in spontaneity, form no part of the res gestæ.

50

49

In an action for the death of an engineer, a declaration by a fireman as to the cause of the explosion, made shortly after he recovered consciousness, were admissible as res gestæ.51

45 Wiggins v. Foster, 55 P. 350, 8 Kan. App. 579; Reiley v. Haynes, 16 P. 440, 38 Kan. 259, 5 Am. St. Rep. 737.

46 Kimball v. Edwards, 137 P. 948, 91 Kan. 298.

47 St. Louis & S. F. R. Co. v. Chaney, 94 P. 126, 77 Kan. 276.

Declarations of plaintiff in a personal injury suit made subsequent to the injury complained of are inadmissible to show that he was suffering from a disease alleged in his petition to have been produced by the injury. Union Fac. Ry. Co. v. Hammerlund, 79 P. 152, 70 Kan. 888.

Where a railway switchman was injured while uncoupling cars, and thereupon told the foreman to call some one, that he wanted to make a statement, and the engineer came to his side, and in response to a question the switchman narrated how the accident happened, his declarations were no part of the res gestæ. Atchison, T. & S. F. Ry. Co. v. Logan, 70 P. 878, 65 Kan. 748.

48 City of Topeka v. High, 51 P. 306, 6 Kan. App. 162.

49 Atchison, T. & S. F. R. Co. v. Johns, 14 P. 237, 36 Kan. 769, 59 Am. Rep. 609; St. Louis & S. F. R. Co. v. Burrows, 61 P. 439, 62 Kan. 89.

50 Smith v. Chicago, R. I. & P. Ry. Co., 142 P. 398, 42 Okl. 577.

51 Denver v. Atchison, T. & S. F. R. Co., 150 P. 562, 96 Kan. 154, Ann. Cas. 1917A, 1007.

§ 992. Acts and statements

Acts and statements accompanying or connected with the transaction or event in question are generally admissible as part of the res gestæ.52

So, also, acts and statements before or after the event may become a part of the res gestæ where they are so intimately connected with it as to form part of the transaction itself.53 But such acts or statements must not be too remote.5

54

52 Where, in an action on a note by a bank, one of the defendants testified that he went to the bank and inquired about the note, and was told to see the president, that he went through the rooms occupied by the tellers, cashier, and others, and was directed into a room which bore the sign "President," and found a man there, and asked him if he was the president, the statement that he was, and, on inquiry if the bank held the note, "I will look and see,” and, after going into the other rooms where the tellers and cashier were, and on his return, "We have no such paper," were verbal acts, contemporaneous with his conduct as an officer of the bank, and part of the res gestæ admissible against the bank. Olson v. Houston Nat. Bank, 96 P. 853, 78 Kan. 592.

The conduct of an insolvent debtor, at the time of and immediately after a claimed fraudulent transfer of property, may be shown as part of the res gestæ, for the purpose of proving the intent with which such transfer was made. Haskett v. Auhl, 45 P. 608, 3 Kan. App. 744.

In an action by a wife against her father-in-law for alienating the affections of her husband, plaintiff offered testimony of the declarations of defendant to his son, during the time she alleged that he was accomplishing the alienation, to the effect that he did not desire his son to live with plaintiff, and that he would not give him any money if he continued to do so, etc. Defendant denied these statements, and by his own and other testimony sought to show that, during the period mentioned, he had told his son, at different times, to bring his wife to defendant's home, and that he ought to live with her. Held, that such declarations were inadmissible, as not part of the res gestæ. Eagon v. Eagon, 57 P. 942, 60 Kan. 697.

53 In an action for death of servant falling down elevator shaft, testimony that witness warned decedent to be sure elevator was there and he replied that it was, is competent as part of the res gestæ. Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356.

Expressions by those in charge of defendant's engine, immediately after collision causing death of plaintiff's decedent, which were instinctive and spontaneous, are admissible as res gestæ. King v. Missouri Pac. Ry. Co., 156 P. 728, 97 Kan. 769.

In an action for injuries due to a defective floor, held, that evidence that defendant's manager stated shortly after the injury that he knew the floor was defective and had neglected to repair it, was admissible as part of the res gesta. Herring v. Hood, 55 Okl. 737, 155 P. 253.

In an action for damages resulting from an accident, testimony relating to matters so intimately connected with the accident as to form a part of the

54 See note 54 on following page.

A medical expert may testify to patient's statement to him as to his condition, symptoms, and feelings, when they are necessary to examination for treatment; such testimony not being independent evidence of facts stated, except when competent as part of res gestæ.55

Testimony of expressions of a natural and spontaneous character,

res gestæ is admissible, though such matters occurred after the accident. Ott v. Cunningham, 58 P. 126, 9 Kan. App. 886.

In an action to recover damages resulting from failure to deliver promptly a telegram addressed to the plaintiff's attorneys, and concerning the bringing of an attachment action, a statement respecting such failure made by the agent of the telegraph company at the receiving office to the said attorneys when handing them the telegram, three days after its date, was a part of the res gestæ, and was properly admitted in evidence. Western Union Tel. Co. v. Getto-McClung Boot & Shoe Co., 61 P. 504, 9 Kan. App. 863.

Evidence as to acts and statements of person receiving personalty from another soon after acquiring possession, and while in possession, was admissible as part of the res gestæ on an issue as to whether the conversations constituted a sale or bailment. Greer v. Davis Mercantile Co., 121 P. 1121, 86 Kan. 686.

54 A witness' testimony as to a statement made by one of defendant's employés four or five hours after the accident held not part of the res gestæ. Chicago, R. I. & P. Ry. Co. v. Foltz, 54 Okl. 556, 154 P. 519.

A statement by the engineer, after collision with a wagon and the train had stopped, in response to a question by the conductor, held not admissible as part of the res gestæ, where it appeared that is was a mere narrative of the occurrence. Missouri, O. & G. Ry. Co. v. Adams, 52 Okl. 557, 153 P. 200.

Statements by the cashier of a bank in conversation with one of the makers of a note, made eighteen months and also four years after the assignment of the note to the bank, and after suit had been brought thereon, as to how the bank held the note, are inadmissible as part of the res gestæ, when it is not shown that the cashier acted for the bank in the transaction by which the note was assigned to it, and when there was no transaction pending at the time of the conversation. Gillespie v. First Nat. Bank, 95 P. 220, 20 Okl. 768. Where deceased fell off a train between 1 and 2 o'clock at night, statements made by him, on being discovered after daylight, relative to the cause of the accident, were not admissible as part of the res gestæ. Smith v. Chicago, R. I. & P. Co., 142 P. 398, 42 Okl. 577.

A person having in his possession a bottle of wood alcohol, inviting a neighbor to drink with him, said: "It is good. I got it of Chase Brown." Two days afterwards he died, apparently from wood alcohol poisoning, and his administratrix sued Brown for negligence in selling the alcohol without a proper label. Held, that the admission of the statements of deceased was prejudicial error. Campbell v. Brown, 106 P. 37, 81 Kan. 480, 26 L. R. A. (N. S.) 1142. The deceased having been run over by a train, declarations of the engineer are not res gestæ when made after he had stopped the train and five minutes after the accident. Tennis v. Rapid Transit Ry. Co., 25 P. 876, 45 Kan. 503. 55 Chicago, R. I. & P. Ry. Co. v. Jackson, 63 Okl. 32, 162 P. 823.

§§ 993-995 indicating present bodily pain, is competent; but declarations as to past feelings and symptoms are hearsay, and should be rejected.

§ 993. Directions

Directions by a depositor accompanying a deposit, as to credit to be given, are provable by a banker after decease of depositor.57

DIVISION III.-SIMILAR MATTERS

§ 994. In general

Before evidence as to similar facts and transactions will be admitted, it must be shown that such similarity actually exists, and that the result of the controversy in question does not depend entirely upon peculiar characteristics of the particular subject-matter of the action.58

§ 995. Fraud

When a party is charged with fraudulent representations, similar representations, made about the same time to other persons, may be

56 Sly v. Powell, 87 Kan. 142, 123 P. 881.

Exclamations of present pain or suffering made by an injured person may be received in evidence in connection with his appearance and conduct, where they appear to be the natural and spontaneous expressions of present feeling. Federal Betterment Co. v. Reeves, 93 P. 627, 77 Kan. 111, 15 Ann. Cas. 796. 57 Washbon v. State Bank of Holton, 121 P. 515, 86 Kan. 468. Directions by depositor, given after a credit properly made, as to credit to be given, held not admissible as part of res gestæ. Fidelity & Deposit Co. of Maryland v. State Bank of Holton, 139 P. 370, 91 Kan. 740.

58 Report of factory inspector as to another saw of different type and make, belonging to defendant and located in another part of defendant's mill, held inadmissible. Jones v. Oklahoma Planing Mill & Mfg. Co., 47 Okl. 477, 147 P. 999.

On an issue of the condition of hominy prepared in Oklahoma City, sold from sample, evidence that the seller afterwards sold hominy put up by the same company to others in Oklahoma City without complaint was inadmissible to contradict that of the vendee that the hominy was worthless. T. S. Reed Grocery Co. v. Miller, 128 P. 271, 36 Okl. 134.

In an action to recover plaintiff's share of profits from the purchase of land by himself and defendants, it is not error to exclude testimony concerning a separate business of dealing in real estate on commission, in which plaintiff and defendants were partners. Van Fossen v. Mosher, 17 P. 95, 38 Kan, 417. In an action to recover money alleged to have been loaned, where defendant claims that the money was furnished to him for the purpose of investing in cattle at plaintiff's risk, evidence of similar contracts between defendant and third persons is inadmissible. Roberts v. Dixon, 31 P. 1083, 50 Kan. 436.

t

shown as bearing upon motive, but such statements made by others. in the absence of the person charged are incompetent.5

59

If a person against whom fraud is alleged should be proven to have been guilty of it in a number of instances, still, if the particular act sought to be avoided is not shown to be tainted with fraud, it cannot be affected by the other frauds.60

§ 996. Custom-Accidents-Value

When regularity in the custom and course of business becomes an issue, lack of such regularity may be shown by other instances of a similar nature.61

Evidence of other injuries or accidents, from the same or similar causes, are admissible; 62 but it must be shown that the conditions are actually similar.63

59 Atchison Savings Bank v. Potter, 164 P. 149, 100 Kan. 407.

In action for fraud, representations made by supposed agent to other parties at about the same time as to value of stock sold are competent to show a definite plan to defraud. Amazon Fire Ins. Co. v. Bond (Okl.) 165 P. 414. Where a party claims a contract was procured through fraudulent representations, evidence that the same party made like representations about the same time to other parties, with whom he was attempting to make similar contracts, is admissible to show motive or intent. McCauley v. Custer, 143 P. 489, 93 Kan. 27.

In action on note defended on ground that plaintiff was not a holder without notice of infirmity because of knowledge of its agent, that note was obtained from defendant maker by false representations for stock in an insolvent bank, evidence of other frauds in sale of other stock for notes to plaintiff was relevant. Atchison Sav. Bank v. Potter, 104 Kan. 373, 179 P. 319.

When it is alleged that a contract to supply water for irrigation and to purchase for the grantee certain land was fraudulent and not carried out by the grantor, it is competent to show that the same party made similar, but not identical contracts with other grantees about the same time which were not carried out, as tending to show system, motive, or intent. People's Bank of Minneapolis v. Reid, 120 P. 339, 86 Kan. 245.

60 Price v. Winnebago Nat. Bank, 79 P. 105, 14 Okl. 268.

61 In an action for the amount entered by a bank on a passbook, where the defense was predicated on correctness of bank's records and method of business, plaintiff might show its errors as to deposits affecting other parties. L. J. Brosius & Co. v. First Nat. Bank (Okl.) 174 P. 269.

62 In an action against a city, to recover for personal injuries, caused by a defective crossing, evidence that, previous to the accident in suit, other accidents had occurred on the crossing, was admissible to show its condition. City of Junction City v. Blades, 41 P. 677, 1 Kan. App. 85.

63 On an appeal from an award in proceedings to condemn a right of way for a railroad over a highway, where the fee was in plaintiff, it was error for the court to permit evidence as to damages to the farm of plaintiff by reason