Lichtenwallner v. Lanbach

Mr. Justice Sterrett

delivered the opinion of the court, October 6, 1884.

The questions of fact, presented by the pleadings and evidence, having been properly submitted to the jury in a clear and comprehensive charge to which no just exception can be taken, the verdict must now be accepted as a conclusion correctly drawn by the jury from the testimony before them. If the verdict was not warranted by the evidence then the only remedy of the defendants below was by motion for new trial. In that they were unsuccessful, and the discretion exercised by the court in denying the motion is not reviewable here.

In substance, the jury was instructed to inquire whether, at the time Laubaeh and his wife took possession of the house from which she was afterwards ejected, the defendants or either of them were in possession thereof; if they were not, they committed a trespass in removing her and her goods therefrom. On the other hand, if they or either of them were then in possession, and the plaintiffs unlawfully took and assumed to hold’ possession, the defendants had a right to remove Mrs. Laubaeh and her goods from the premises, using no more force than was necessary for that purpose, and doing no unnecessary damage to her goods. Recognizing these as the controlling questions of fact in the case, the defendants in their sixth point requested the court to charge the jury that if “the defendants or any one of them had the rightful possession of the house and premises where the alleged trespass is said to have been committed, and that Sarah A. Laubaeh and her husband and family obtained possession by artifice or by violence, and the defendants, coining to the knowledge of the fact, turned plaintiffs out, at the request of the rightful owner, with no more force than was necessary, then the plaintiffs cannot maintain this action; for, in that event, the possession of the plaintiffs was not rightful, but wrongful, and in the eye of the law no possession at all.” This point was broadly affirmed, and thus the case went to the jury, as a question of fact, on its merits and without regard to any technical question of pleading. By necessary implication the material facts of which the point is predicated are negatived by the verdict. In other words, the jury, in arriving at the conclusion they did, must have found either that Mrs. Laubaeh was in peaceable possession of tlie house at the time she was ejected, or that unnecessary force and violence were used in removing her and her goods therefrom. One or both of these vital facts must have been found by the jury; and, either is quite sufficient to sustain the verdict.

There was no error in refusing to charge as requested in defendants’ fourth point. Without the qualification suggested by the court, the proposition is too broad. Nor was there any error in refusing defendants’ eighth point. As a legal proposition it is incorrect. It often happens that vendor and vendee have a verbal understanding as to when the latter shall be entitled to possession, and that may be shown by such evidence as is ordinarily sufficient to prove any other fact. It is not necessary that the evidence of such agreement should be “ clear, precise and indubitable.” The question, moreover, was not whether Charles Lichtenwallner had the right of possession, but whether he was actually in possession of the premises when Laubach and his family moved into the house. The jury was instructed that the effect of the deed given in evidence by defendants was to vest title in the vendee, but that the title was not involved in the issue except so far as it tended to show that defendants or some of them were rightfully in possession at the time of the alleged trespass. The first and second assignments are not sustained.

The testimony of Dr. Martin, the attending physician of Mrs. Laubach, which is the subject of complaint in the third to sixth specifications inclusive, tended to explain to the jury her condition, the nature and extent of the injury complained of, and was therefore competent. Nothing is better settled than that statements of a patient to his physician, as to the character and seat of his sensations, made for the purpose of receiving medical advice, are competent evidence in his favor in an action to recover damages for a personal injury: Barber and Wife v. Merriam, 93 Mass., 322; Fay v. Harlan, 128 Id., 244. It must be conceded that proof of statements, thus made by the patient, as to his bodily ailments and symptoms, is in the nature of hearsay; but, its admissibility is an exception to the general rule of evidence, justified only by the necessity of the case. The existence of many bodily sensations and ailments which go to make up the symptoms of disease or injury can be known only to the person who experiences them. The. statement and description of these necessarily enter into and form part of the facts on which the opinion of a medical expert, as to the conditions of health or disease, is founded ; and inasmuch as they can be proved only by the declarations of the patient, such declarations must be admitted, or proof of them would fail altogether. The weight and value of such evidence are for the jury, and must be determined by them in each particular case.

We are not satisfied there was any error in sustaining the objections to the questions referred to in the tenth, eleventh and twelfth specifications respectively. Nor do we think there is anything in either of the nine remaining specifications of' error that either requires special notice or would justify a reversal of the judgment. The case hinged entirely upon questions of fact which, as we have seen, have been definitively settled by the verdict.

Judgment affirmed.