Phillips v. Kelly

BICE, C. J. The objection to the plaintiff’s declaration, which was offered in evidence by him, was general, no particular ground of objection being stated. In this court, the defendant calls our attention to the fact, that the declaration was made after the commencement of the suit; and he here contends, that the mere fact that the declaration was made by the plaintiff after suit brought, makes it the duty of this court to hold that the court below erred in overruling his aforesaid objections. Our opinion is, that the defendant has precluded himself from claiming, in this court, any benefit from that fact, by failing to state it as a ground of objection, or to bring it to the notice of the court below in any manner whatever. The trial was had more than three years after the alleged assault and battery. The declaration, asu offered in evidence, was made two years after the assault and battery, but contained nothing, on its face, which proved that it was made after suit brought. It is true, the court below might have referred to the writ, to ascertain whether the declaration, as offered in evidence, was made before or after suit brought; but the court was not bound to do so, nor was it bound to go behind the pleadings, or to cast about to ascertain the grounds which induced the defendant to make his objections. The court was authorized, under the objections actually made, to confine its inquiry to the question, whether the evidence as offered was illegal upon its face; and to admit it, if it was not illegal upon its face. For it is a settled rule, that when the evidence is not illegal on its face, but it requires some fact to be brought to the notice of the court to show its illegality, the party objecting must state the grounds of his objection ; and if he fail to state any ground, the court may overrule his objection. — Cunningham v. Cochran, 18 Ala. R. 479 ; Wallis v. Rhea, 10 ib. 451 ; Donnel v. Jones, 13 ib. 490. If, therefore, the evidence which was objected to as aforesaid was not illegal.ore its face, there was no error in overruling the objections made to it. It is a general rule of evidence, that the declarations of a party shall not be admitted in his favor. But it is incon [633] trovertibly established by the authorities, that there are declarations which, in their very nature, must be evidence, though emanating from the party himself who seeks to use them in his own favor. — 3 Phil. Ev. (edition of 1850,) 210, 212-226, note 166. And among these, none can more properly or reasonably be classed or included, than declarations of the existence of pain in any particular part of the body. A physician might be able, from the symptoms, to determine that a man was sick ; but there are many cases, in which the existence of pain in any particular part of the body is not indicated by any such symptom as would enable even a physician to locate it, or to testify to its existence. Take, for instance, cases of tooth-ache, head-ache, neuralgia, and rheumatism, in the early stage! In all such cases, the person affected may be undergoing severe pain, and yet without any symptom which would enable the medical man to detect and testify to its existence. And so there may doubtless be cases, where pain in particular parts of the body may be occasioned by wounds, which have apparently been healed, and yet the existence of that pain may not be indicated by any symptom which would be sufficient to justify the man of science in testifying to its existence. Now in cases where the existence of pain in any particular part of the body is, in its very nature, incapable of proof, except by the declarations of the sufferer, his declarations of its existence must, from necessity, be admitted as evidence of its existence, if its existence at the time such declarations were made be a material question. Such declarations are to be regarded as evidence only of the existence of fain at the time they are made : they are not evidence of the cause or origin of the pain. Their credit, or weight, is a question for the jury, who ought always to be careful not to be deceived or misled by them. — See authorities cited infra. In this case, the existence of pain in the head, neck and back of the plaintiff, two years after the assault and battery, was one of the material questions. If he convinced the jury of its existence, and, in addition thereto, satisfied them that the pain was one of the natural results of the assault and battery inflicted on him by the defendant, he was entitled to more damages, than he would have been entitled to if the [634] injury bad been slight and of short continuance. He had the right to prove the extent of the injury, and to prove that, at the expiration of two years from its infliction, he had not recovered from its effect, but was suffering pain which naturally resulted from it. His declaration that his head, neck and back hurt him, was evidence of the existence of pain in those parts of his body; the very parts upon which the wounds were made by the defendant. The existence of pain in those parts does not appear to us to be capable of proof, otherwise than by his declarations. And although we deem such evidence to be of a dangerous character, yet, upon reason and authority, we think it safer to admit it, and let the jury pass upon its weight and effect, than to exclude it altogether. It would look like a mockery, for the law to say to the plaintiff, “ I will allow you to prove that your head, neck, and back hurt you two years after you had been wounded by the defendant; I know that, in the very nature of things, it is impossible for you to make such proof, except by your own declarations; and I will not allow you to introduce those declarations.” The law is not so inconsistent with itself, and with reason, as to declare that a plaintiff may prove a thing, and at the same time also to declare that the only proof of which the thing is in its nature capable, shall not be heard or considered. The rule is, that whenever the bodily or mental feelings of an individual, at a particular time, are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible as evidence of the existence of such feelings. They are classed with natural evidence, as distinguished from personal evidence. And whether they were real or feigned, is for the jury to determine. — 1 Greenlf. Ev. § 102 ; Darby v. Rice, 2 Nott & McCord, 596 ; Gray v. Young, 4 McCord, 38 ; Thompson v. Trevanion, Skin. Rep. 402 ; Aveson v. Lord Kinnaird, 6 East's Rep. 188 ; Roulhac v. White, 9 Iredell, 63; Biles v. Holmes, 11 ib. 16 ; Lush v. McDaniel, 13 ib. 485 ; Clancy v. Overton, 1 Dev. & Batt. 402 ; Rowland v. Walker, 18 Ala. R. 749 ; Eckles v. Bates, 26 ib. 655 ; U. S. v. Craig, 4 Wash. C. C. Rep. 729. On the trial of an indictment for an assault and battery, the defendant may prove even the pendency of a civil action [635] against- him for the same assault, in mitigation of the fine.— The State v. Autery, 1 Stew. Rep. 399. But in a civil action for an assault and battery, the defendant has no right to prove that he had been indicted, convicted and fined for the same assault and battery. — 3 Phil. Ev. (edition of 1839,) 850. The judgment entry shows that the jury tried the case upon “the issue joinedbut we do not find in the record any plea, or other thing which enables to say with any certainty what that issue was. As to that, we are left to intendment. The uniform decisions of this court require us to make every reasonable intendment, consistent with the record, in favor of the rulings of the court below ; and we shall therefore presume that the issue was joined upon the plea of not guilty. Indulging that presumption, it is clear that there is no error in refusing the first charge asked by the defendant; for, conceding that the agreement referred to in that charge, and its performance on the part of the defendant, might, if specially pleaded, have operated as a bar to. this action, that agreement and its performance by the defendant cannot so operate, when only given in evidence under the general issue. 2 G-reenl. Ev. §§ 92, 93. The second charge asked by the defendant, was properly refused, because it erroneously assumes that “ an assault by one white man upon another, with intent to kill,” is a felony. An assault with intent to murder is a felony ; but an assault by one white man upon another, with intent to kill, is a misdemeanor only. — The State v. Burns, 8 Ala. 313; Ogletree v. The State, 28 ib. 693. The third charge asked was properly refused, because it erroneously assumes that, if the plaintiff provoked the fight, and advanced on defendant in a hostile manner, after notice to stand back, and entered into the fight willingly, he could not recover in this action, however excessive or enormous the beating he received, or however grievous the wounds inflicted upon him. The law gives no such sanction or immunity to unnecessary cruelty, or to brutal revenge. Before a defendant can, under the general issue, claim exemption from legal responsibility for beating and wounding a plaintiff, on the mere ground of misconduct on the part of the plaintiff, which does not, in law, amount to an assault, he must show that he [636] was wholly free from fault. — 2 Greenlf. Ev. §§ 92, 94, 267, 274; Brown v. Riddle, 20 Ala. Rep. 412; Logan v. Austin, 1 Stew. Rep. 476. There is no error in the record, and the judgment is affirmed. STONE, J. I admit that the North and South Carolina decisions sustain the conclusion of the majority of the court, on the question of the admissibility of the plaintiff -7s declarations, made at the time he lay down, eighteen months after the injury. I am not satisfied with those decisions, and would prefer to declare a different rule. It is certainly true, that whenever the mental or bodily feelings of a party are to be proved, the usual expression of those feelings must be resorted to as the vehicle of proof. By this I understand those expressions of pleasure, or exclamations of pain, which immediately ensue after the act done, and which it is difficult to counterfeit. I would go one step further : when the condition of the person was such as to afford visible evidence of pain, I would receive accompanying declarations, as a part of the res gestae, and as in their nature, original evidence. When, however, the declarations are offered alone, or accompanying an act which is, in itself, indifferent, and of which the counterfeit is not distinguishable from the real, I think sound policy requires their exclusion. When declarations are offered as the basis of a medical opinion, I would let them in, no matter when made. The reason for this is obvious. The physician^ being skilled in the symptoms of disease, is presumed to be able to distinguish real symptoms, which are always consistent with themselves, from a fabricated statement, which would rarely be consistent. The argument in favor of the opinion of my brothers, based on the fact that a different rule would, in many cases, deprive a party of all proof, in my opinion should weigh nothing. The same argument may be urged, with the same force, whenever a fact exists, of which a litigating party has no legal evidence.