Sellman v. Wheeler

Opinion by Pearce, J., ⁷⁵¹ This is an action of trespass vi etarmis 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. ⁷⁵² The defendants pleaded non ad, 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 U. S. Post Office at Watersville, and a retail store, in the building, and that plaintiff while in the building made a noise and disturbancetherein, and conducted himself in a rude and quarrelsome manner. The plaintiff joined issue on the first plea, and replied to the 2nd, 3rd and 4th 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 testi ⁷⁵³ ele, 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 chord 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 non-expert 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 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, &c.,” 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 .

Nor do we perceive any valid objection to the two following questions and the answers thereto. Each of these questions called for the statement of facts only, descriptive of his physical condition to which he was certainly competent to testify, and the answers contained nothing but such statements of ⁷⁵⁴ facts. Neither the questions nor the answers dealt with the cause of the injury. That related exclusively to its effect.

The Maryland cases cited by the appellants upon this point have no pertinency to the question here, nor does the language of Lord Mansfield in 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. Wheeler 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 emamined 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. Greenleáf says, vol. 1, sec. 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 ⁷⁵⁵ 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 , 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 treatment and advice, is admissible in his favor, though the interview was only a day or two before, or possibly during the trial. And in N. P. R. R. v. Urlin, 158 U. S. 275 , the text of Greenleaf and the case just cited are approved. It will be observed that the only statement made by plaintiff to Dr. Hering was of his suffering at the time, though it was held in Roosa v. Boston Loan Co., 132 Mass. 439 , that a physician may testify to a statement or narrative given by his patient in relation to his condition, symptoms, sensation and feelings both past and present, and that these are admitted from necessity, because in this way only can the bodily condition of the party be ascertained. We are not required, however, to go to that extent here.

It was also held in that case, and we think properly that this does not extend to the patient’s declaration of the cause of the injury. In the case before us there was no such declaration by plaintiff, arid Dr. Hering expressly testified that he knew