Allen v. Vancleave , 54 Ky. 236 ( 1854 )

Chief Justice Marshall

delivered the opinion of the Court—

This action was brought by Allen to recover damages for the alleged breach of a written warranty of the soundness of a female slave, purchased by him from the defendants. The bill of sale bears date on the 10th December, 1852, and the slave died on the 5th of February following, after she had been for about two weeks under the constant attendance of a physician, who, from symptoms stated, and examinations made by him, was of opinion that she had pneumonia and a chronic inflammation of the womb, which was incurable, and which, in his opinion, must have been of several months’ continuance before her death. Other physicians, who heard the statement of the first, were of opinion, from the symptoms detailed by him, that the inflammation of the womb was acute and not chronic. Upon this evidence, and that of many witnesses, male and female, proving the apparently vigorous health of the woman up to, and after the sale to the plaintiff, and his own. expressions of satisfaction with his purchase, the jury found a verdict for the defendants. And the plaintiff’s motion for a new trial having been overruled, he has prosecuted a writ of error to this court for the reversal of the judgment against him, presenting, as the only question of law arising on the record, the propriety of an opinion of the court limiting the answer which the attending physician, above referred to, should be allowed to give, to two questions propounded to him by the plaintiff.

In a suit on a warranty of soundness of a slave sold, the declarations 'of the slave made to the attending physician, at the time he is attending, of her feelings, of the nature, symptoms, and effect of the malady •under which she was laboring at the time, held •to be admissible evidence to •be given to the ;jury on the question of sound-ness or unsound-mess.

The two questions asked: 1st. What the woman said to the physician respecting her disease, when he visited and attended her as a physician ? and, 2d. Whether he did not come to the conclusion that she had chronic inflammation of the womb, and also as to the length of time the disease had existed, from his own examination, from the symptoms he found prevailing, and from what she said in relation to her disease in answer to questions put by him while attending on her as a physician ?

The defendants having objected to the answering of these questions, the court allowed the witness to state all the woman said as to her 'existing illness, and the manner of her attack, and the progress of her disease ; but refused to let him state what she said in relation to any former illness, or the manner of the attack, or the progress of the disease, or the history of her former disease. To which opinion of the court the plaintiff excepted, and made it afterwards a ground of his motion for a new trial, and now urges it as a ground of reversal.

There might be some doubt whether by their own terms, the questions are not confined to what the patient said respecting the illness for which the physician was then attending on her. But they admit of a broader construction, and from the fact of an exception being taken to the restriction imposed by the court, and from that restriction having been made a ground for the motion for a new trial, it seems probable that the questions were intended to elicit answers as to the statements of the woman relating to a previous disease, or illness. If they were not so intended and understood, they would have been satisfied by answers which the opinion of the court allowed the witness to make, and a new question would have been framed to elicit any statements as to a former illness or disease. In this view, the limitation expressed by the court had no other effect than that of restricting the answer to the terms of the questions actually put to the witness. And as no interrogatory was offered, no questions would properly arise as to its admissibility, or the extent to which it might be answered. But whatever may have been the extent of the question, we are of opinion that the court was sufficiently liberal in stating the extent to which it might be answered, and that the restriction imposed upon any further answer whether to be regarded as practically affecting the right of the party in adducing evidence, or as a theoretical opinion only, cannot be regarded as tending to the exclusion in this or any other case, of proper and legitimate testimony.

The only case in this court heretofore reported, in which the question was directly made as to the admissibility of the statements of a slave respecting his diseased condition, is that of Tumey vs. Knox, 7 Monroe, 88. In that case the court was so divided as that the majority concurred only in the opinion that improper evidence had been admitted of the statements of the slave in question. But while Chief Justice Bibb was of opinion that such statements, in the absence of the party against whom they were offered, were wholly inadmissible, the other two judges did not agree with respect to the circumstances under which, and the extent to which, they were admissible. Judge Owsley was of opinion that the declarations of a slave to different persons and at different times, relating to his condition when the declarations were made, might be admitted as parts of the res gesta, and as evidence bearing upon the question of a continued disease. Judge Mills was of opinion that the declarations of a slave may sometimes constitute a part of the res gesta, and be proper evidence, and as the opinion of a physician whether the disease is temporary or chronic is often founded upon his examination of the patient, combined with other circumstances, it might be competent for him to detail the reasons for his opinion, combined with his examination.

In the case of Marr vs. Hill, &c. 10 Missouri Reports, 323, to which we have been referred, the court said that in addition to the appearances and actions of a slave, his exclamations or declarations as to the pains or afflictions suffered, whether made to a professional or unprofessional person, were a part of the res gesta, and they were admitted on that ground. But the court further said that the mere declarations of a slave that he or she was diseased, without proof of any symptoms or appearance of disease, would be mere hearsay, which ought not to affect the rights of any person, and would be clearly inadmissible. This case certainly does not sanction the evidence of such declarations, except so far as they relate to a present disease, but has clearly an opposite tendency, since no mere statement of a past transaction or fact can be regarded as a part of that transaction or fact — that is of the res gesta to which the declaration relates— but would be mere hearsay, inadmissible if the declarations were made by a competent witness, and much more when they are made by a slave, who could not, if present, prove the fact.

The other cases referred to in the Tennessee and North Carolina Reports, as cited in 10th, 11th and 12th U. S. Digest, go no farther than the case from Missouri just noticed, and some of them seem not to involve the question as to declarations made to unprofessional persons. The quotations from 1 Phillips on Evidence, 232, and from Cowan and Hill’s Notes, No. 446, also relate to declarations as to the condition of the person at the time. So in 1 Greerdeaf on Evidence, sec. 102,. it is said, that “whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence,” and that if natural, they are satisfactory, subject to the judgment and decision of the jury as to their being real or feigned. And further on, in the same section, he says : “So, also, the representation of a sick person, of the nature, symptoms, and effects of the malady under which he is laboring at the time, are received as 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.”

This doctrine is laid down by Greenleaf without particular reference to slaves. But it is the established docti-ine with respect to the admissibility of the declarations of competent witnesses in relation to their mental or bodily condition or feelings. And as their’ declarations are admitted as original evidence only when they relate to their feelings at the time, or to the nature, symptoms, and effect of the malady under which they are laboring at the time, and are regarded as mere hearsay, so far as they go beyond this limit, there can be no good reason for admitting evidence of the declarations of a slave to any greater extent. The question whether any declarations of a slave, with respect to his health even at the time, are admissible unless made to the attending physician, is not now presented for consideration, and we express no opinion upon it. In two manuscript opinions at the present term, such declarations to the attending physician in relation to the immediate malady under which the slave was laboring at the time, were held to be admissible on the question of soundness or unsoundness at a previous time. But they do not extend to the admission of declarations as to a previous malady or illness..

Wherefore, there being no error prejudicial to the plaintiff, in the opinion of the court, on the subject which has been noticed, and the evidence being sufficient to sustain the verdict which has been sanctioned by the Circuit Court, the judgment is affirmed.