Elliott v. Van Buren

• Decision Date: 02 November 1875
• Citation: 33 Mich. 49
• Court: Michigan Supreme Court
• Parties: Richard Elliott v. Emma Van Buren

33 Mich. 49

Richard Elliott v. Emma Van Buren

Supreme Court of Michigan

November 2, 1875

Heard October 22, 1875

Error to Ingham Circuit.

Judgment affirmed with costs.

Dart & Shields and D. Johnson, for plaintiff in error on the point that the testimony of physicians is to be regarded as the best evidence of bodily ailments, cited: Rex v Quinch, 4 C. & P., 571; Evans v. People, 12 Mich. 27; Johnson v. McKee, 27 Mich. 471; 1 Greenleaf Ev., § 82; and as to the admission of declarations and complaints of sickness and suffering: Page v. N. Y. Central R. R. Co., 6 Duer 523; Baker v Griffin, 10 Bosw. 140; Enos v. Tuttle, 3 Conn. 250; Caldwell v. Murphy, 11 N. Y., 416; 1 Greenleaf Ev., §§ 110, 111; as to the evidence of plaintiff's bad character: People v. Abbott, 19 Wend. 192; Beebe v. Knapp, 28 Mich. 67; Rex v. Barker, 3 C. & P., 589; Hadden v. Shortridge, 27 Mich. 213; and on the subject of exemplary damages: Austin v. Wilson, 4 Cush. 273; Sinclair v. Tarbox, 2 N. H., 135; Taylor v. Carpenter, 2 W. & M., 22; Tabor v. Hustin, 5 Ind. 322; Nossman v. Ricket, 18 Ind. 350: Cook v. Ellis, 6 Hill 466; Wilson v. Middleton, 2 Cal. 54.

H. B. Carpenter and M. V. Montgomery, for defendant in error, on the subject of exemplary damages, cited: Day v. Woodworth, 13 How. 368; Allison v. Chandler, 11 Mich. 542; Warren v. Cole, 15 Mich. 265; Detroit Post v. McArthur, 16 Mich. 447; Kreiter v. Nichols, 28 Mich. 496; Elliott v. Herz, 29 Mich. 202; Welch v. Ware, 32 Mich. 77.

Campbell, J. Marston and Cooley, JJ., Graves, Ch. J. concurred.

OPINION

Campbell, J

Emma Van Buren sued Richard Elliott for an assault and battery, one count of the declaration averring an attempt to ravish. The chief bodily damage shown on the trial consisted of bruises and injuries creating bodily weakness, and the aggravation of a malady accompanied with fits. The jury rendered a verdict of five thousand dollars. Errors are alleged upon various rulings during the trial, and in the charge to the jury.

The course of the argument renders it proper to refer briefly to some preliminary considerations.

This action is nothing more than trespass for an assault and battery. There is no such thing as a private action for a crime as such. The civil grievance here charged was an assault, described, as was proper, with its attendant circumstances of enormity, including an attempt to ravish. This, however, does not make it differ from an action for a lighter grievance, except as showing a heavier ground of complaint, for which, if made out, the damages allowed would be likely to be larger. The assault could be shown under either count, and if the whole circumstances of enormity were not made out, this would not defeat the action, but would only bear on the amount recovered. There is no rule of evidence which requires a greater preponderance of proof to authorize a verdict in one civil action than in another, by reason of the peculiar questions involved.--Watkins v. Wallace, 19 Mich. 57. The doctrine of this case has been adhered to in this state, and the court rightly refused to direct the jury that they could find no verdict upon the main charge, unless on proof of the nature and degree required on an indictment for an attempt to commit the crime of rape; that is to say, in other words, they must be convinced beyond a reasonable doubt. Indeed, if such a direction would have been proper at all, it would have been applicable to the whole case; for a common assault has always been indictable, and an attempt to commit a felony was only a misdemeanor at common law, and the rule of reasonable doubt is not confined to felonies. No doubt a jury will always feel disposed to scrutinize an infamous charge more closely than a trifling one, and will not convict without being well satisfied, but there is no rule of law which adopts any sliding scale of belief in civil controversies.

We are also compelled to remark that it is not in the province of an appellate court to consider the amount of the verdict, or the weight of the evidence. The court of trial may set aside a verdict which violates justice, and it is to that tribunal that parties must apply for relief against excessive damages, or any other of the wrongs for which it may be right to grant a new trial. We are bound in all cases to assume that the jury have done no legal wrong when acting within their province. If the court below has committed no legal error, we can only affirm the judgment.

The errors assigned, though numerous, are all capable of arrangement under a few heads.

The first group comprises objections to the reception of testimony tending to prove the continued results of the assault, in bodily weakness and malady, and the fact of plaintiff's suffering from fits. The errors are supposed to consist in receiving irrelevant testimony, and in receiving testimony which was not in law the best quality of evidence.

Upon the first of these points the case is covered entirely by the decision in Johnson v. McKee, 27 Mich., R., 471. The sickness and other physical mischief caused by the assault constitutes of necessity a large part, and sometimes the worst part of the damage done. The aggravation of an existing disease or injury is quite as reasonable a ground of complaint as the creation of a new one. And the declarations of a sick person made from time to time concerning present sufferings and sensations (not being relations of past occurrences) are the usual means of evidence where third persons testify on the subject. The opinion in that case covers the whole ground, and we need not enlarge upon it further.

It is claimed, however, that the testimony of persons who are not physicians should be excluded, on the ground that the law requires the best evidence, and theirs is not the best.

The term "best evidence" is confined to cases where the law has divided testimony into primary and secondary. And there are no degrees of evidence except where some document or other instrument exists, the contents of which should be proved by an original rather than by other testimony, which is open to danger of inaccuracy. But where living witnesses are placed on the stand, one is in law on the same footing with another. If he can testify at all, he can testify in the presence as well as in the absence of those who may be supposed wiser or more reliable. There are some questions on which some witnesses cannot testify at all for want of knowledge. No one can be allowed to prove what he has never learned, whether it be ordinary or scientific facts. But one who can testify under any circumstances upon the facts on which he is examined, may do so as well where his superiors are to be found as where he knows as much as any other.

We think there is no rule which can prevent ordinary witnesses from describing what they see, or from testifying concerning the kind of injury or sickness of others whom they have had occasion to consort with, unless it is something out of the common course of general information and experience, or unless the question presented involves medical knowledge beyond that of ordinary unprofessional persons. It would be ridiculous to shut out testimony of what any juryman would understand well enough for all the exigencies of the case before him, simply because no physician has seen or examined the party. It would lead to a denial of justice in all cases of bodily injuries and sickness which did not occur within range of medical help, and which were not regarded as so difficult of treatment as to demand it. There is no danger that the introduction of common testimony on matters of common knowledge will do any more mischief, when open to cross-examination before a court and jury, than would arise from the want of any legal means of selecting witnesses from the numerous class of professional men, who differ as much in their relative merits as many of them do from laymen. There is nothing in the record before us which shows that any question arose on which it was necessary to resort to the evidence of learned witnesses. And all considerations concerning the credit due to the several witnesses belonged to the jury.

It is also alleged as error, although not much pressed on the argument, that the defendant's wife was not allowed to testify as to her knowledge and approval of the purpose with which defendant below left his own house to go to that of Mrs. Van Buren on the occasion under review. But it must be manifest that if he actually made the assault complained of he could not have done so with any innocent intention, whether he had in view the felonious purpose charged or not. The court charged the jury plainly that he could not be convicted unless he began the attack himself. He might have committed it on an intent conceived at the time, or on one which was of longer duration. A considerable period elapsed before anything occurred of which complaint is made. The only possible object for introducing the testimony proposed must have been to contradict and discredit the principal witness, or to corroborate defendant, by showing that the defendant professed beforehand that he had an innocent errand. But no previous declaration or intent could change the facts if he was guilty, or could tend to show that he was not guilty. He had been sworn at length and did not profess that his wife suggested his going to plaintiff's house, which was the special matter proposed to be shown; and on this point she could not, if she had so stated, have corroborated him. The only proof of malice brought against him was in the actual circumstances of the assault; and we can see no...