The opinion
Salinger, J.
(Concurring). The dissent of my brothers Deemer and Preston has impelled me to state why I concur in so much of the opinion as holds that, under some conditions, insanity is as much the basis for admitting hearsay as is death.
On March 31, 1905, one Yon Kutzlaben signed and swore to a declaration, in effect, that he derailed the train whose wrecking injured plaintiff. About October 30, 1908, upon a verdict in an inquisition under Sec. 5541, which determined that he was insane, he was ordered confined in the department for the criminal insane at Anamosa, to be there detained until he became sane. So far as the verdict goes, there was a finding of general insanity. But the order upon the verdict recites that he is committed because his discharge then would endanger the public safety. Still later, an order in habeas corpus released him from the reformatory, and directed that he be surrendered to the Jones County commission of insanity, for such action as it deemed proper. This order proceeds on the expressed ground that no criminal charges are then pending against him, and that, therefore, there was no further right or power to detain him in the reformatory.
Said commission found his mental condition to be:
“It is safe to the public that he be discharged upon the condition that he be delivered into the custody of his mother, and that R. G. Popham is empowered to take charge of him and accompany him to the city of Chicago, Illinois, for the purpose of delivering him to the custody of his mother.”
At the time of the trial now on review, had in February, 1910, he was at large, residing either in Chicago or somewhere in New Jersey. His declaration was rejected as hearsay. Our differences of opinion do not touch four propositions: (1) Whatsoever condition said inquisition does establish is presumed to continue; (2) Whenever it becomes necessary to show that this condition has ceased to exist, the burden is upon him who asserts such cessation. (3) Other than the order made by the commission of insanity, there was no release and *396 no finding or other evidence of recovery. (4) Had it been proved on this trial that Yon Kutzlaben was dead, then one of the conditions required to make said declaration admissible, would have existed. Thus, the dividing line between us is clear. On the one hand, it is held that his insanity at the time that his said declaration was rejected was still such as that the same reason for admitting it existed as if he were then dead; on the other hand, that his insanity was not confirmed and general, and that, even if it were, the case is not within the exception which is applied when the declarant is dead.
It does not prove the soundness of a position that the arguments advanced against it are untenable. But here, the ones advanced by the minority come so near to being all that can be said for the claim that death alone makes such a declaration admissible as that whatever demonstrates that such arguments are unsound disproves the position that such arguments seek to maintain.
It will conduce to clarity in treatment to eliminate some matters which should be absolutely conceded, and others which are conceded but may be avoided.
I. (a) The majority is not sustained by cases wherein the declarant was dead, though they do intimate that insanity is a basis which is equivalent to death.
(b) The views of the majority are not sustained by cases which, upon a showing of either death or insanity, admit a transcript of testimony given by the incompetent upon another trial.
II. So far as case law and text writers are concerned, the majority has no support except one decided case which supports it squarely, one other decision which, while holding as the majority does, weakens itself by putting absence from the jurisdiction, and the like, into the same class with total insanity, and Mr. Wigmore on Evidence (Vol. 2, Sec. 1456). Mahaska County v. Ingalls, 16 Iowa 81 , in holding that the rule should not be enlarged, intimates that it might be *397 “in the case of confirmed insanity.” As the declarant was dead, this is not a decision of the point now mooted. But, at the least, it leaves the question open in Iowa and creates an atmosphere favorable to relaxing the rule enough to include confirmed insanity. No other Iowa case has foreclosed either the majority or the minority. It cannot be claimed that, if numbers make weight of authority, the majority opinion is in accordance with such weight. But it has not always been the policy in this court to make its view on open questions depend upon counting the number of the cases on each side of the question. It would be difficult to find a case more in conflict with the decisions in all jurisdictions than that of Mentzer v. Western Union Tel. Co., 93 Iowa 752 ; and, so far as I am advised, the doctrine of that case has been adhered to by us steadily, although the numerical weight of authority against it has been steadily maintained. Nothing in the subject-matter of Mentzer’s case furnishes a special reason why it should be pronounced or adhered to against numbers. A rule that damages for negligence in delivering a telegram may be recovered for mental suffering without bodily injury, is as to this in no different position from a rule of evidence that insanity equals death as a basis for admitting hearsay. As to following numbers, there is no difference between rules of evidence and rules as to what damages are recoverable. It is true, but, as I view it, not material, that rules of evidence were made and adhered to before the telegraph was discovered. Any contention that, because telegraphy is a modern thing, cases opposed to the rule of the Mentzer case do not count in testing weight of authority must meet the fact that both the Mentzer case and the cases in opposition to it deal with the law of negligence as applied to the delivery of telegrams. Just how a difference resting on before and after the discovery of the telegraph can make a distinction between cases, when all of them were decided after the discovery, I am unable to see. This is no intimation that the Mentzer case is not rightly decided, but is a statement that a minority in cases may be right, and *398 that a decision on an open question is not shown to be wrong by a naked showing that it is not as numerously supported by decided cases as is the contrary view.
It may be noted, in passing, that here, as in many other lines of decisions, numerical weight is more often evidence of a desire to shirk labor than of being controlled by the weight of reasoning. A tracing down of the lines of decisions more numerous indicates quite strongly that the leaders merely declared what is manifestly sound, to wit, that death was a basis for applying this exception. Others therefrom argued, or said by way of dictum, that death was the only basis. After these careless decisions became so numerous as to be very easy to find,'other careless writers followed, without investigation of whether what was followed was really authority for holding that death was the exclusive basis.
III. While the order of commitment declares that Von Kutzlaben could not then be discharged without danger to the public, the verdict on the inquisition upon which this order is founded seems to have been without limitations, and, hence, a finding of total insanity. There is no finding or other evidence that there was either a total or even a partial recovery. All that there is is an order releasing from Anamosa because no prosecutions remained pending, and a subsequent placing of Von Kutzlaben in the hands of custodians. Hence, by presumption, it appeared at this trial that Von Kutzlaben was still totally insane. Concede that the test is whether the declarant is competent to take an oath, why is not a showing that one whose declaration is offered is then totally insane evidence that he should not be sworn?
IV. Whether the insanity was so confirmed as that Von Kutzlaben could never testify seems to be an irrelevant inquiry. The only question is, Was he competent when his declaration was offered? If, though then totally insane, his declaration is rejected, subsequent recovery has no effect one way or another. It must be assumed that, had the declaration been received instead of being rejected, it might have won the lost *399 suit. How does it affect the matter, after a cause is lost by excluding a declaration which should have been admitted because the declarant was too insane to be a witness, that, later, he becomes competent to testify? Unlike sickness or the like, there is no way of making subsequent recovery material. One could not ask a continuance on the ground that a witness was a total or confirmed lunatic. There would be no way of fixing the duration of the continuance — no way of - giving an assurance when the condition of the witness would change, or even, at what time it was reasonably expected that a .change would take place.
Y. Admit that receiving such declaration is an affirmative finding that the declarant is then incompetent, and that such finding is the basis for admitting the declaration, and it does not prove the objection that, so, a collateral inquiry is improperly injected. It may be collateral; but if so, every preliminary inquiry as to whether a proposed witness understands the obligation of an oath is equally so. Neither is it persuasive that whether a proposed witness has capacity to understand the nature of an oath can only be determined by the trial court before whom it is proposed' to introduce his testimony, and that this cannot be determined until he is called to give evidence in some case.
No good reason appears why, if the competency of a witness properly becomes the subject of inquiry, it cannot be pursued unless the living witness is offered at the trial, and the matter determined then and there. Whether the witness be or be not present, and no matter how the question arises, it should suffice that the court which is asked to receive his evidence determines its admissibility by using the methods usual in judicial decisions. Here is a declaration offered. It is admissible, say, if the declarant be insane, and not admissible if he is competent to be sworn. The declarant is not in court. Why may not the question of admissibility be as much inquired into as though the question arose on the proposal of a witness who was present? If not, then there is no way of *400 testing whether one whose deposition is offered is a competent witness, except by losing the use of the deposition, for the deposition is not receivable if the deponent be in court. And death, concededly a sufficient basis, could not be shown, unless the corpse were present at the time that the declaration of the deceased was offered.
VI. A holding that complete insanity of declarant at the time his declaration is offered makes ■ the declaration competent, is not a decision that all things which prevent or make inconvenient the using of the declarant as a witness have the same effect. The vital difference is (1) that absence from the jurisdiction or asserting privilege, and the like, may be the basis of a motion for continuance, and (2) that such are created by voluntary act, and, hence, might be made a method of forcing the admission of such declarations. Manifestly, collusion cannot create total insanity. To be sure, insanity may be feigned. But that question is also part of the inquiry. And this possibility is only one illustration that the machinery of the law is not an absolute guaranty against mistake. . Death may be feigned. Witnesses may be deceived by a state of catalepsy. They may assert death, falsely. The dead body of declarant is not brought into court. Death, the conceded basis for admitting the declaration, is itself found by methods that may fail to obtain the actual truth.
VII. Still following out the line of thought that the important question is not whether insanity shall admit such declarations, but that there is great danger that the basis will not be sufficiently proved, the point is made that the rejection of the declaration amounts to a finding of fact, conclusive here, that no sufficient insanity existed. The rejection was put upon the express ground that the declaration was hearsay. It is' hearsay whether the foundation of insanity was or was not proved. It follows, therefore, that the rejection did not involve a decision on whether the foundation was sufficient. Had the court expressly rejected the declaration *401 on account of insufficient. foundation, a different question would arise.
VIII. An attempt of defendant to obtain the deposition of Von Kutzlaben failed, because he pleaded privilege. It is suggested by the minority that his declaration should now be rejected because inability to get his testimony is not due to insanity, but to that plea of privilege. The offer of his declaration does not rest on the fact that he at one time refused to answer, but on the claim that said declaration should now be available because at the time of offer he was insane. Had Von Kutzlaben been dead at the time that his declaration was offered, would the minority contend that the declaration was inadmissible, because atone time the declarant had refused to be interrogated as a witness ? If such earlier plea of privilege would not shut out the declaration with death as a basis, then on any reasoning which makes insanity the equivalent of death, such plea of privilege would not bar the admission where insanity is a basis.
IX. It is conceded that the declaration of Von Kutzlaben was admissible had there been testimony that he was dead at the time the declaration was offered. Why should the same declaration be rejected despite undisputed testimony that he was at said time totally insane? The exception which admits hearsay because there has been a death has for its foundation that the death has made better testimony impossible, that the ascertaining of truth is the desideratum in all judicial inquiry, and that, rather than fail in attaining the truth, inferior evidence shall be received if, by reason of death, such testimony is the best obtainable. In a ease where it is conceded that the declarant is totally insane when his declaration is offered, every condition is present upon which rests admitting such declaration on account of death. While declarant is totally insane, better testimony can no more be obtained than if he were dead. It becomes apparent, then, that the minority does not really assert that insanity can never be a basis for *402 admitting hearsay. It does not claim that a complete lunatic is more available for ordinary testimony than is a corpse. On analysis, its argument makes the point that there is more difficulty in being sure of total insanity than of death. Be that so, it but establishes that there should be greater care in accepting insanity as the basis for admitting such testimony. That, however, is no reason for rejecting it as a basis if it has been clearly shown to exist. There is nothing said or to be said in opposition,' except that in finding this insanity there may have been error, or that the court may have been deceived. As said before, that is no more true of ascertaining mental condition than of a multitude of other things the judiciary must ascertain as a foundation for decisions.
It is said in Fish v. Poorman, 85 Kas. 237, 243 ( 116 Pac. 898 ), and in 1 Wigmore on Evidence, § 578, that the tendency is towards the reception rather than the rejection of evidence, experience having shown that more harm results from its exclusion than from its admission.
This is quoted with approval in the remarkably able opinion in Thurston v. Fritz, 91 Kas., at 475, and the essence of this branch of this discussion cannot be stated better than is done by Mr. Justice West in writing that opinion:
“We are confronted with a restrictive rule of evidence commendable only for its age, its respectability resting solely upon a habit of judicial recognition, formed without reason and continued without justification.”
And his further statement, in effect, that a rule should be abrogated when the reason for it has perished, may well be amplified by saying that no rule should survive beyond the moment at which it is perceived that no logical reason for it ever did exist.
X. As I read it, the decision of the Supreme Court of the United States in Drew, Sheriff, v. Thaw (N. H.), 235 U. S. 432 , is not in conflict with these views. It does not determine that insanity may not be so complete as that the incompetent cannot be guilty of participating in a criminal con *403 spiracy, but that whether he is so insane is for the state-court, on defense to the charge.
XI. There seems to me to be little occasion for adding anything in support of that part of the opinion which holds that the Von Kutzlaben declaration met the condition that it be against pecuniary interest. If it was ever law that such a one is not against such interest, I do not think it is or should be law now. If a declaration may be assumed to be true because its making will cost the declarant a hundred dollars, the same assumption is warranted where the statement may cost life or liberty. Be that as it may, this declaration made Von Kutzlaben liable in damages and, hence, meets the test in any view.