
    ERICKSON v. SMITH.
    June, 1869.
    The rule that where a public officer may be required by law to make a return of his acts, a return made by him may be used as evidence of the facts therein stated, does not make a mere official certificate of inspection required by law, evidence of the matters which the inspector therein certified he was satisfied of, when such matters .are drawn in question by a stranger.
    
    In an action for damages caused by a steamboat explosion, the certificate of the inspection of the vessel under the Act of Congress of 1852, is evidence that the vessel was inspected; but is not evidence of the other matters relative to the vessel which are stated in it.
    
    
      The deceased was a passenger on board defendants’ steamboat when the boiler exploded, and seeing the steam rash into the cabin, she ran out, and her body was subsequently found in the water. Held, that a medical witness who had examined the body, and testified that the death was caused by drowning, might properly be asked, what would have been the indications if a person had been suffocated first, and after-wards had fallen into the water, although there was no evidence that this was the fact.
    William T.-Erickson, administrator, &c., of Mary E. Erickson, sued David and Tunis Smith, in the supreme court, for damages under the statute, for injuries causing the decedent’s death.
    Defendants were owners of the steamboat Arrow, running as a passenger boat on the Hudson River. On August 5, 1855, a boiler flue exploded, and the deceased, who was among the passengers then on board, was terrified, and ran from her companions, and her dead body was afterwards found in the river. The theory of the defense was that she was not injured by the explosion, but madly rushed overboard and was drowned.
    On the trial, a witness, Dr. Beach, who had been present at the coroner’s inquest, testified that in his opinion the deceased died from drowning; his examination of the body was superficial ; he did not find any evidence of scalding that he could swear to. He further stated that the body was much decomposed. There was an abrasion on the face, and the skin was easily peeled off; and that in his opinion there were scalds.
    On his re-direct examination counsel were allowed to ask him under exception,
    " What would have been the indications if a person were suffocated, and afterwards falls, or is thrown overboard ?”
    A. We should have similar indications as we would have from drowning.
    On behalf of defendants, one Kraft, a United States inspector of hulls and steamers, was called as a witness, and was shown a certificate of the inspection of the steamer, under the act of 1852, signed by himself and Douglass, another inspector. The witness did not inspect the boiler, that was done by Douglass, who was not produced as a witness.
    
      The court, James C. Smith presiding, admitted the certificate in evidence, as showing an inspection, but not as evidence of the facts recited in it, in this case against the plaintiff, except that the vessel was inspected. And upon the cause of death the judge charged the jury that if the deceased was scalded so severely as to cause her to apprehend that she was fatally injured, and being unable to bear the consequent physical anguish, she rushed overboard, impelled by a sudden and instinctive feeling that her suffering would thereby be lessened and relieved; or, if, under reasonable apprehension of immediate physical danger, in hearing the explosion and seeing the steam rushing into the cabin, where she was, she ran out of it, and in attempting to reach a place of safety she accidentally, or without fault on her part, fell overboard, they might find that the death was caused by the explosion.
    The jury found for plaintiff three thousand dollars, and judgment was affirmed at general term,-and defendants appealed.
    
      Erastus CooTee, for defendants, appellants;
    Insisted that the question put to Dr. Beach was purely hypothetical, and based on no facts; citing People v. Lake, 12 N. Y. (2 Kern.) 358; Dickinson v. Barber, 9 Mass. 227; and that the certificate was evidence of the facts stated in it, on which point he relied on the authorities cited in the opinion, and Milford v. Worcester, 7 Mass. 57
    
      Ira D. Warren for plaintiff, respondent.
    
      
       Consult alse Board of Water Commissioners v. Lansing, 45 N. Y. 19; Dubois v. Newman, 4 Wash. C. Ct. 74; Brown v. Calloway, Pet. C. Ct. 291; Huntley v. Donovan, 15 Q. B. 96 ; Exp. Church, 1 Bowl. & R. 324; Brown v. Thornton, 6 Ad. & E. 185; Kinnersley v. Orpe, 1 Bong. 56; Rex v. Mawbey, 6 T. R. 619; Waldron v. Coomb, 3 Taunt. 163. As to certificates not strictly official,—Blackburn v. Crawfords, 3 Wall. 175; Rex d. Bathwick, 2 Barn. & A. 639; Vaux Peerage case, 5 G. & E. 542 ; Dufferin, &c. Peerage, 2 H. of L. Cas. 47; Sewell v. Corp, 1 Carr. & P. 392; Matter of Klingemann, 11 W. R. 218 ; Abbott v. Abbott 29 L. J. Matr. 57; Drake v. Maryatt, 2 Dowl. & R. 696.
    
    
      
      As to the effect of the acts of Congress, in respect to the remedies in the State courts, see Landers v. The Staten Island R. R. Co., 13 Abb. Pr. N. S.; Baird v. Daly, 4 Lans, 426; Swarthout v. New Jersey Steamboat Co., 48 N. Y. 209; Chisholm v. Northern Transportation Co., 61 Barb. 363.
    
   By the Court.

Daniels, J.

The questions presented for decision upon this appeal arise under the rulings of the court before which the trial was had, concerning the admission and rejection of evidence. The first of these in importance is that which related to the certificate of inspection of the steamboat on which the explosion took place. That inspection and certificate were made on June 25, 1855, and the explosion occurred on August 5, following. The steamboat was a passenger boat, and that circumstance, as well as the form of the certificate itself, indicate that she was inspected under the act of Congress, passed August 30, 1852, and not made under the act of 1838.

But whether it was made under one or both of these acts is a matter of not the least importance upon the present occasion, because that does not affect the disposition of the questions, raised upon the trial. The substantial reasons, if any exist, for allowing any greater force or effect to the certificate than it was allowed to have upon the trial, depend upon the act of 1853.

For under that of 1838, the inspectors were not required to ascertain, and certify to facts within their own personal observation, but were permitted to obtain them from other sources and then to embody them in their certificate. This was to contain a statement of the age of the boat, when and where she was built, and the length of time she had been running; whether in their opinion the boat was sound, seaworthy, and fit to be used for the transportation of freight or passengers, and whether in their opinion the boilers were sound and fit for use, to which was required to be added a statement of the age of the boilers. 5 U. S. Stat. at L. 305, §§ 4, 5.

From the nature of the duty imposed by this act, it is clear, that they were required to state no fact beyond that of inspection alone. For all the other matters required to be contained in the certificate consisted of the opinions of the inspectors concerning the condition of the boat and her boilers, and of facts necessarily derived from information acquired from other persons. And for these reasons it could not, when made, be competent evidence in an action between her owners and other persons in no way connected with the examination, inspection and certificate made.

But the act of 1853, is more comprehensive as well as more definite in its requirements. By that act the inspectors were to satisfy themselves that the steamboat was of a structure suitable for the service in which she was to be employed, and in a condition to warrant the belief that she might be used in navigation as a steamer with safety to life, and that all the requirements of the law had been complied with regarding fires, boats, &c. They were also required to inspect the boilers and subject them to the hydrostatic pressure prescribed, and to satisfy themselves by examination and experimental trials, that the boilers were well made, of good and suitable material; that the openings for passage the of water and steam respectively, and all pipes exposed to heat, were of proper dimensions and free from obstruction; that the spaces between the flues were sufficient; that the fire line of the furnace was below the water line of the boilers, and that such boilers and machinery could be safely employed in the service proposed, without peril to life.

They were also required to satisfy themselves that the boilers, flues, and other machinery connected with them, in other respects, were in such a condition as to render them capable of being safely used in the business in which the steamboat was to be employed, and they were prohibited from approving any boiler or pipe made wholly or partially of bad material, unsafe in ibs form, or dangerous from defective workmanship, age, use, or any other cause. And after making such inspection in detail, if they approved of the steamboat, they were then required to make and subscribe a certificate to the collector of the district, in the form prescribed by the act. This certificate, enumerating and describing the boilers and machinery found on board the steamboat, and her accommodations and capacity, was also required to contain the statement, that she was “ in all respects staunch, seaworthy, and in good condition for navigation,” and that it was their deliberate conviction founded on the inspection,” made by them, that she could “ be employed as a steamer upon the waters named in the application [for inspection] without peril to life, from any imperfection of form, materials, workmanship or arrangement of the several parts, or from age or use.” 10 U. S. Stat. at L. 61; Act of Aug. 30, 1853, Id. 63-65; 1 Bright. Dig. 849-853.

This inspection and certificate were rendered necessary for the purpose of entitling the masters and owners of the boat to the papers required by and enabling her to engage in the business of navigation under the laws of the United States (§ 1). And to that extent the certificate of act of 1852 (above), necessarily became conclusive upon the officer whose future conduct was required to be based upon it. But beyond the effect to be given to it, which must be implied from that circumstance, the act contains nothing giving it the nature or character of evidence, in controversies between the owners of the steamboat and third persons, involving the condition of her boilers and machinery.

As proof of the fact that the inspection had been made in the manner prescribed by the statute, and that the law so far had been complied with, it may very well be that it was competent evidence. And for that purpose it was received upon the trial of the present action. This was clearly the understanding of the court. For when it was alluded to in the charge, it was stated that it had been admitted for the purpose of allowing the defendants to show that they had caused the engine to be inspected, and the certificate to be* given which the act of Congress required, in order to allow them to run the boat. Beyond that certainly, from the nature of the duties to be performed, and the form of the certificate required to be given, by the inspectors, its effect as evidence ought not to be extended. They were required to do certain things by way of performing their duties, and that they did them, and in the mode prescribed by the statute, presumptively followed from the fact of the inspection itself.

By allowing the certificate to be used as evidence of the inspection, and that the law in that respect had been complied with, the defendants had the benefit of the facts that the required inspection and examination had been made and the pressure applied, prescribed by the terms of the statute. But the statements made beyond that, of the general condition of the steamer, the conviction arrived at by the inspectors of the safety of the boiler and machinery, and the fact that she could be safely employed in her business as a passenger boat without danger or peril to life, were not evidence of facts, but mere inferences drawn from them by the inspectors, and for that reason were not evidence against the plaintiff. And this was the only restriction imposed upon its use as evidence by the court at the trial, if indeed, from the ambiguous and uncertain statement of the ruling contained in the case, even so much as that can be accurately said to have been done. .

The statement of the ruling is, that the certificate was received as evidence showing the inspection, but not as evidence of the facts recited in it;—which was entirely accurate, whether it included more or less than has already been supposed to have been within the ruling; for it is very well settled that the recitals contained in an instrument are never evidence against a stranger to it, as the plaintiff in this case most clearly was. 2 Gow. & H. Notes, 3 ed. 453, and cases there cited.

The authorities-referred to by the defendants’ counsel do not warrant the conclusion that this certificate should have had any greater force than was given to it as evidence upon the trial of this cause. The rule stated by Starrkie (vol. 1,173), is entirely unsupported by the case cited by him as sanctioning it. And he himself appears to have doubted its accuracy, for he has followed his reference to the case, on which he asserted it, with a query. Upon consulting it this case will be found to contain nothing whatever indicating the propriety off such a doctrine. See Brett v. Ward, Winch, 70. And the principle previously mentioned by this author is entirely at variance with any rule that would render this certificate evidence of the inferences 'and conclusions of the inspectors, or of anything beyond the fact that the inspection and examination of the boat had been made as the statute required that to be done.

For he says, “ That neither the declaration nor any other act, of those who are mere strangers, or, as it is usually termed, any res inter alios acta’ is admissible in evidence against any one, as affording a presumption against him, in the way of admission or otherwise. 'In general, it would be contrary to the first and most obvious principles of justice, that any one should be bound by the acts, or concluded by the declarations, or assertions of others to which he was in no wise privy. Hence it is that no man is bound by any decree or judgment as to any matter of private right litigated in a suit to which he was not privy.” Stark. on Ev. part 1, § 32.

In the case of Clintsman v. Northrop, 8 Cow. 45, the question was not considered how far the act of the inspector of the leather was evidence against the defendant. But it was held that it was not conclusive, as the court upon the trial had held it to be. And that was all. that was decided upon that occasion. And no more than that was decided in the case of People v. Peck, 11 Wend. 604. The decision was that the certificate was evidence, but to what extent it was deemed to be so was not stated. And, besides, the circumstances under which that certificate was made were more favorable to its admissibility as evidence than those which existed in this case. For when legally and properly given, it necessarily constitutes the evidence contemplated by the statute of the election of the trustees. In the case of Jack v. Martin, 12 Wend. 311, the effect to be given to the certificate was expressly 'declared by the act of Congress under which it was made, and precisely that, and nothing beyond it, was given to it in that case. The cases of the United States v. Benner, 1 Baldw. 234; and The same v. Liddle, 2 Wash. C. Ct. 205, were peculiar and unusual. They involved, the relation of certain foreign representatives to the government of the United States,—a fact peculiarly within the knowledge of the secretary of state and dependent upon his action. And for that reason his certificate that they had been accepted and recognized as such by the department over which he presided was held to be evidence of that fact, for it showed that to .have been the act of the government required for that purpose.

Where a public officer may be required by law to make a return, and his acts included in the return afterwards become involved in controversy, there it may be used as evidence. But where no return is required by law to be made, the certificate of the officer is not evidence, either for himself, or in behalf of any other person not using it as an admission against him. The rule upon that subject has been stated to be that, “where the law has made it the duty of a public officer to make a return of his doings, and has made him responsible for the truth of his return, a return may be evidence.” Stephen v. Clements, 2 N. H. 390, 391. And this principle has been approved in the case of Hathaway v. Goodrich, 5 Vt. 65; see also, Oakes v. Hill, 14 Pick. 442, 448. But the obligation imposed upon the inspectors of returning their certificate to the collector, was not such a return as this'rule contemplates.

The rule contained in Greenleaf on this subject is stated to be, that, “ In regard to certificates, given by persons in official ' station, the general rule is, that the law never allows a certificate of a mere matter of fact, not coupled with any matter of law, to be admitted as evidence.” 1 Greenl. § 498. This statement of the law is exceedingly indefinite and unsatisfactory, but still it affords no support to the case presented by the defendants. In People v. Minck, 21 N. Y. 539, the inspector’s return was held to he evidence, because the general principles embodied in the statute established that to be the character of their action. And besides that, it was plainly within the rule mentioned by the Supreme court of New Hampshire. None of these cases sanction the principle contended for by the defendants.

The objection taken to the question put to the witness Beach, as to what would have been the indications if a person was suffocated, and afterwards falls or is thrown overboard, was somewhat singular and peculiar. It was, that there was no evidence to show that the deceased had been thrown overboard, and there is no pretense that she was. As the plaintiff’s right to propound the question did not depend entirely upon that circumstance, there was no impropriety in allowing the question to be answered. The objection that the opinion of the witness was incompetent was not included in the ground taken at the trial.

[The learned judge, after disposing of several minor objections to evidence, which he overruled because not sufficiently explicit, concluded that the judgment should be affirmed.]

A majority of the judges concurred.

Judgment affirmed, with costs.  