Eckles v. Bates , 26 Ala. 655 ( 1855 )

CHILTON, C. J.

—We fully recognize tbe doctrine, as asserted in Rowland v. Walker, 18 Ala. R. 749, that the declarations of a slave, made when sick, relative to the symptoms and nature of the disease under which he is laboring, whether made to a physician or other person, are admissible as original evidence. Such declarations are admissible as explanatory of the present condition of the slave, upon the principle of res gestee, as well as upon the necessity of the case.

We are also of opinion, that what the slave said to the physician, both as respected his condition at the time he was called to see him, and his previous physical symptoms, on which the physician in part relied in forming his opinion as to the duration of the disease and its character, was properly received, as furnishing the basis in part for that opinion, but for no other purpose. If, in the judgment of a scientific phy* sician, the previous condition of the slave was so described as to aid him, in connection with the other attendant circumstances, in forming a correct judgment as to the length of time the slave had been diseased, it is not for the court to exclude the opinion of the physician because he has availed himself of these declarations. That opinion goes to the jury, with the facts on which it is founded, for what it is worth. They, of course, will look to the data upon which it is predicated, and give it more or less weight as the circumstances may afford a sure or dubious test of the slave’s previous condition. In this view, the declarations of the slave, describing his physical habitudes, his present and past sufferings, and the symptoms accompanying them, become part of the res gestee, as they enable the physician, when considered in connection with his then apparent condition, to form a more correct idea of the character of his disease, and direct his inquiries and aid his investigation into its nature upon the post-mortem examination which was made.—Turney v. Knox, 7 Mon. 88.

But the declarations of the slave, as to his previous attacks and the medicine which he took, which are merely narrative of past events, not made to the physician as constituting any part of the foundation for a medical opinion, but to the female witnesses who deposed in this case, and who are not skilled in the science of medicine, were improperly allowed to go to the jury. What the slave did and said, as explanatory of his condition at the time he was laboring under the disease, they might well depose to, as this constituted part of the res gestee; but his previous attacks, and his opinion as to their similarity with that under which he was then laboring, constituted no part of the res, and could only be admitted in connection with, and as the foundation of, the opinion of a physician. Such declarations are not, therefore, legal evidence, when offered by themselves as original proof. .Were such the law, it would be an easy matter to prove slaves unsound by their declarations of their unsoundness, oftentimes feigned as an excuse to avoid labor, or to procure a change of masters. They are incompetent to testify against a white person, and to permit their declarations to be made original proof, except as they constitute part of the res gesta, or are made in connection with and as furnishing a basis for the opinion of physicians, would be to let in all the evils which their exclusion as witnesses was designed to avert.—See Lush v. McDaniel, 13 Iredell’s Law R. 485.

The above principles will be easy of application to the proof in this cause upon another trial, and we need not, therefore, prolong this opinion by a specific application of them.

Let the judgment be reversed, and the cause remanded.

Rice, J., having been of counsel, did not sit in this case.