Sellman v. Wheeler

• Decision Date: 20 November 1902
• Citation: 54 A. 512,95 Md. 751
• Parties: SELLMAN et al. v. WHEELER.
• Court: Maryland Court of Appeals

54 A. 512

95 Md. 751

SELLMAN et al. v. WHEELER.

Court of Appeals of Maryland

November 20, 1902

Appeal from Circuit Court, Carroll County; Thomas, Judge.

Action by Julian D. Wheeler against Robert Sellman and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Jas A.C. Bond and F. Neal Parke, for appellants.

Guy W Steele, for appellee.

PEARCE J.

This is an action of trespass vi et armis for an alleged assault and battery by the appellants upon the appellee. The narr contains but one count, in the usual form, charging the defendants as joint tort feasors, and alleging special damages by reason of expense incurred for medical and surgical attendance. The defendants pleaded non cul., and also filed three pleas in confession and avoidance, in all of which it was alleged that at the time of the assault charged they were possessed of a building in which the plaintiff was trespassing, and from which, though requested, he refused to depart, and that they then removed him, using no more force than was necessary. The second and third of these pleas also alleged that the defendants kept the United States post office at Watersville, and a retail store in the building, and that plaintiff, while in the building, made a noise and disturbance therein, and conducted himself in a rude and quarrelsome manner. The plaintiff joined issue on the first plea, and replied to the second, third, and fourth pleas, alleging the use of more force than was necessary in his removal. Issues were joined on these replications, and an agreement was filed waiving all errors in pleading, and providing that either party might offer any testimony admissible under any state of the pleadings.

There are four exceptions presented by the record: Two with respect to evidence admitted subject to exception, and subsequently refused to be stricken out; one to the ruling upon special exceptions to certain prayers of plaintiff for want of evidence to support them; and one to the granting of certain prayers of plaintiff, and the rejection of certain prayers of defendants. The first and second exceptions present closely analogous questions. Plaintiff, as a witness, had described the circumstances which led to and characterized the assault, testifying that he had entered the building in a quiet and orderly manner to inquire about a car he had ordered; that Robert Sellman said plaintiff had ordered no car, and he replied that he had, but that Sellman had taken it for his own use, and that Sellman said he was "a damn liar and thief"; that at that time Alonzo B. Sellman, the postmaster, son of Robert Sellman, came in, and Robert Sellman said, "Throw the damn thief out," and Alonzo Sellman seized him by the back of the neck and the bottom of his pants, or by the suspenders, and he was thrown out, from a porch eight or nine feet wide and five feet high, to the ground. He further testified, subject to exception, that while being carried across the porch he had an aching and burning sensation in his left testicle, which pain had continued ever since. He further testified that a short time after the assault he left the place, and said: "I then went up the road through a woods of mine, and when I got in the woods I looked at my testicle, and found a red stripe over it, and it was very much swollen; and two or three weeks after that I found an injury there, and I went to Baltimore and had it taken out. Question. How did this injury that you speak of affect you? Answer. It made me very nervous, and I could not sleep at night, and, when I went to stoop over to do anything, I had great pain. Question. What is your condition at present? Answer. My condition at present is that I suffer a great deal from the pain from the testicle going along the cord into my stomach."

The defendants moved to strike out the testimony above embraced in quotation marks, and the first exception was taken to the refusal to strike this out. In support of this exception, defendants rely upon the rule that the opinions of nonexpert witnesses are not evidence, and they argue that the testimony objected to is merely the opinion or inference of the plaintiff. They admit that he can testify as to his condition before and after the injury, in order that from these facts the jury may form its opinion and draw its inferences as to the cause of the injury; but they say that to ask the witness, "How did this injury which you speak of affect you?" is to ask the very question the jury had to decide, and that to permit the witness to answer, "It made me nervous," etc., is to give probative force to the mere inferences of the witness as to the cause of the injury. It certainly cannot be seriously contended that the rule invoked excludes that part of the testimony objected to, which precedes the question as to how the injury affected him, since that is a simple description of his physical condition and of facts which he knew. City Pass. Ry. Co. v. Nugent, 86 Md. 360, 38 A. 779. Carter v. Boehm, 3 Burr. 1918, quoted upon their brief, have any greater pertinency, when the case is examined. That case concerned an insurance effected through a broker, who testified "that he did not believe the insured would have meddled with the insurance if he had seen certain letters" in evidence, and it was of this "belief" that the court said: "It is an opinion which, if rightly formed, could only be drawn from the same premises from which the court and the jury were to determine the cause, and therefore it is improper and irrelevant in the mouth of a witness." We find no error in this ruling.

Dr. Joseph Hering, a practicing physician, then testified that plaintiff came to him in December (the assault having been in September), and further testified, subject to exception, as follows: "I examined Mr. Wheeller, who came to me complaining of a pain in his testicle. I found him to be suffering with an enlargement about the testicle. I suggested some treatment for him, and that if it continued he would have to go to the hospital and have an operation performed. I did not thoroughly diagnose the exact condition, but there was an enlargement of the left testicle. I next examined Mr. Wheeler yesterday morning, and saw that an operation had been performed, from a scar." Upon cross-examination, Dr. Hering testified: "I know nothing of the cause of the trouble."

The second exception was taken to the refusal of the court to strike out this testimony. The ground of the objection is that this testimony was immaterial, irrelevant, and hearsay. But if Dr. Hering had not been sworn it would have been a legitimate argument to the jury that the plaintiff had failed to produce the best available evidence of the character and extent of his injury. Upon that point, therefore, his testimony cannot be either immaterial or irrelevant. Nor is it hearsay. Mr. Greenleaf says (vol. 1, § 102, 14th Ed) "The representations by a sick person of the nature, symptoms, and effects of the malady under which he is suffering at the time are original evidence. If made to a medical attendant, they are of greater weight as evidence; but, if made to any other person, they are not on that account rejected." In Fleming v. Springfield, 154 Mass. 520, 28 N.E. 910, 26 Am.St.Rep. 268, it was held that a statement by plaintiff in an action for personal injuries, made to his physician, as to his symptoms at the time, if made for the purpose of medical...