Rogers v. Crain

• Decision Date: 30 April 1867
• Citation: 30 Tex. 284
• Parties: ROBERT ROGERS v. JOHN B. CRAIN ET AL.
• Court: Texas Supreme Court

30 Tex. 284

ROBERT ROGERS

v.JOHN B. CRAIN ET AL.

Supreme Court of Texas.

April, 1867.

The expressions of a person afflicted with bodily pains or illness relative to his health and sensations are in their nature original evidence, such expressions being ordinarily the natural consequence and outward indication of co-existing suffering. Such declarations, if made to a medical man, are of greater weight as evidence; but if made to any other persons, they are not on that account to be rejected.

Inquiries by medical men, and the answers to them, are evidence to show the state of health of the individual, and it is admissible from the very nature of the thing. So, in an action for assault and battery, what the plaintiff has said to his surgeons of what he has suffered from the assault is competent evidence.

When the object is to show the condition of health of a person, it is competent to prove how he looked, how he acted, and of what he complained. This is natural evidence, or the evidence of facts, as distinguished from personal evidence or the testimony of witnesses.

The admissibility of evidence of this character depends upon whether the pain or suffering or bodily condition complained of is contemporaneous or co-existing with the declarations.

These rules were applicable to the statements of slaves, as to their diseases, although they could not be witnesses. They were not their statements, but a part of the res gesta.

The opinion of a medical man is evidence, per se, upon the state of a person's health, and the grounds of his opinion, which may be partly the answers of the patient to his inquiries, are admissible collaterally in evidence to support and explain his opinion.

The opinion of a medical man, that his patient died of a disease, the character of which he stated, is admissible evidence, although he had not seen the patient for two weeks before her death. It was an opinion upon a question of science and skill, by a medical witness, founded upon facts within his own knowledge.

The burden of proving a witness incompetent is upon the objector. The mere fact that the witness probably could not know whereof he speaks does not render him incompetent. It is a question of credibility.

The opinions of persons who are not medical witnesses, as to the character of a disease, are not to be received.

Where there was conflict of evidence, and material evidence which proved the plaintiff's case was excluded, he is entitled to a new trial. Pas. Dig. art. 1470, note 566. 23 Tex. 331, 590.

ERROR from Harrison. The case was tried before Hon. CHARLES A. FRAZER, one of the district judges.

The suit was against the heirs of Giles B. Crain, on the warranty of the soundness of a slave, Clarissa, who was alleged not to be sound, but to have died of a disease which was concealed from the purchaser. The points decided turned upon the bill of exceptions of the plaintiff below, in excluding evidence. There was much evidence excluded, besides that passed upon by the court, but the opinion sufficiently sets forth the objections to the evidence and the rulings thereon. The instructions and facts seem to be immaterial. It is enough to say, that the evidence allowed to go to the jury was contradictory. The verdict was for the defendants, and the plaintiffs appealed.

No briefs of counsel have been furnished to the reporter.

COKE, J.

This is an action by the plaintiff in error in the district court of Harrison county, brought to recover damages for an alleged breach of warranty of soundness of a slave sold by the father of the defendants in error, since deceased, to the plaintiff in error, the defendants in error having received and partitioned among themselves the estate of their deceased father, by virtue of his last will, without resort to the probate court. There were a verdict and judgment for the defendants in error, and the cause is brought to this court by writ of error.

It is assigned that the court below erred in excluding testimony, as shown by the bill of exceptions, and in overruling the motion for a new trial. It is assigned that the court erred in excluding part of the answer to the fourth interrogatory propounded to J. D. Martin. The part of the answer excluded is in these words: “The negro woman informed me that she had been suffering from profuse hemorrhage.” This was objected to by the defendants, on the ground that the “statements of the negro were not competent testimony,” and the objection was sustained by the court. We are of opinion that this ruling was erroneous. The witness, Martin, was a practicing physician, and this statement was made to him while visiting and treating the slave Clarissa professionally during her sickness. The expression of a person afflicted with bodily pain or illness, relative to his health and sensations, are in their nature original evidence, such expressions being ordinarily the natural consequence and outward indication of co-existing suffering. Such declarations, if made to a medical man, are of greater weight as evidence; but if made to any other person, they are not on that account to be rejected. 1 Greenl. Ev. § 102; 1 Phill. Ev. 180, and note.

Inquiries by medical men, and the answers to them, are evidence to show the state of health of the individual, and it is admissible from the very nature of the thing. So, in an action for assault and battery, what the plaintiff has said to his surgeon of what he has suffered from the assault is competent evidence. Aveson v. Lord Kenniard, 6 East, 188; Roulhac v. White, 9 Ired. 65.

Such evidence is admissible as part of the res gestæ. When the object is to show the condition of health of a person, it is competent to prove how he looked, how he acted, and of what he complained. This is natural evidence, or the evidence of facts, as distinguished from personal evidence, or the testimony of witnesses. Biles v. Holmes, 11 Ired. 21.

In order to ascertain the mental condition of an individual, his conversation at different times, as well as his looks and acts, may be proved. Upon the same principle, in order to ascertain his bodily condition, his complaints and declarations of contemporaneous pains and sufferings are admissible in evidence. It is for the jury to determine whether these expressions of pain are real or feigned. Rowland v. Walker, 18 Ala.; Biles v. Holmes, 11 Ired. 21.

The admissibility of evidence of this character depends upon whether the pain, or suffering, or bodily condition complained of, is contemporaneous or co-existing with the declaration. If it be a narrative by the patient of a past or former condition, or of the earlier symptoms of the disease, the declaration should not be received in evidence, because then it is not an outward indication of a present existing fact, and consequently not a part of the res gestæ. 1 Phill. Ev. 183.

An application of these principles, which seem to be well settled, to the testimony in question, if the statement had been made by a white person instead of a negro, would be decisive in favor of its admissibility. The woman, Clarissa, when she made the statement, was suffering from disease, and was under the medical treatment of the witness, seeking relief, and although her language was, that she “had been” suffering from hemorrhage, yet it is evident that she referred to her then condition as one of the consequences of the hemorrhage, which brings the declaration fully within the rule. Another portion of the same answer of the witness Martin shows that he founded his opinion of Clarissa's disease partly on this statement. The opinion of a medical man is...