Grannis v. Branden

5 Day 260 | Conn. | 1812

MiTcnEim, Ch. J.

(After stating the case.) The first objection, on which the present motion is grounded, is, that no evidence ought to have been admitted, on the trial, relating to the wounds inflicted by the defendant, upon the plaintiff's wife; because, the only point in issue between the parties, was, whether the defendant had neglected to perform his professional duty. This objection proceeds from a misconception of the cause of action. The gravamen is the defendant’s ignorance, negligence and want of skill ; which may be as clearly evinced, by mis-feasance, as by non-fea-sance ; by positive acts, as well as by negligent. The declaration clearly shews, that the* action is founded on both grounds. The defendant is charged, not only with ignorance and negligence, in permitting the plaintiff’s wife to remain in great distress, for two days, but with an attempt to deliver her in an unskilful manner, pursuing a course of practice not warranted by, and contrary to, the established rules of proceeding in similar cases.

The plaintiffs sustained damage in both ways : That is to say ; the plaintiff’s wife endured great pain, and was in imminent hazard of her life, from the omission and negligence of the defendant; and she also received irreparable injury and lasting wounds from his unskilful practice. If, then, the whole declaration, taken together, contains several distinct allegations, ail going to constitute the gravamen, or one single oause of action, all being parts of the principal charge, there can be no doubt, that all these allegations may be proved, as pertinent to the issue. To warrant the admission of such proof, it is sufficient, if such allegations appear in the declaration. The allegata et probata must agree. This ip the only Criterion, by which the court can determine as to the relevancy of the testimony offered on the trial. If the facts allega! in the declaration, constitute two or more distinct causes of action, which cannot ho joined, the defendant should seek redress by motion in arrest.

Again, it is further objected, that the several particular circumstances attending the transaction in question, ought to have been explicitly and distinctly set forth in the declaration, to warrant the admission of the evidence ; or that all the facts intended to be proved on the trial should have been stated in the declaration. But this is not necessary, according to the rules and precedents in analogous cases. in actions of assault and battery, a general statement is sufficient to let in proof of particular acts, and all the circumstances attending the transaction ; and there is sufficient precision, if the cause of action be so defined, that the party may plead the judgment in bar of another suit for the same cause.

It is apparent, that the allegation relating to the wounds received by the plaintiff’s wife, were introduced for the purpose of laying a foundation for a claim to damages, either as a part of the cause of action, or by way of aggravation : In either case, the judgment would be a good bar to another action brought for the same cause.

Besides, there are many cases, where the law, to preserve the chastity of the record, admits generality in the statement of facts; although such general mode of declaring, would not be strictly conformable to technical rules, in other cases. In this case, there is no necessity of resorting to this principle ; for the fact proved on tiie trial, was sufficiently stated in the declaration, to warrant the admission of proof of all the attendant circumstances.

It is also claimed, that the court erred in admitting evidence to shew, that the defendant falsely, or improperly, pretended, that the plaintiff’s wife was infected with the venerea! disease. This was proper evidence for the consideration of the jury, if introduced for the purpose of shewing, that the defendant was ignorant of the true state of the patient’s case : And if the defendant himself, who might be supposed to make the best of his case, had alleged the existence of guefa a disease, as the only cause of his ill success, the plaintiff, by disproving this charge, might furnish good ground for the jury to infer, that the want of success was attributable, solely, to the ignorance or misconduct of the defendant. For this purpose alone, the evidence was admitted; as the court charged the jury, that it was not to be considered as enhancing the damages. In this view, the evidence was proper. *

The next objection relates to the admission of evidence to shew ihe general character of the defendant, and that he was not a regularly educated physician and surgeon. Such evidence would have been improper, if it had been offered to increase the amount of damages. In such case, it would have been considered as setting up a new and distinct cause of action, inconsistent with the allegation in the declaration. But the defendant, in the first place, introduced evidence of his general character, to raise a presumption in favour of his skill and knowledge in his profession. It then became necessary, and it was competent, for the plaintiffs to rebut this proof. This is analogous to established principles of law. Whenever the character of a party is not immediately in issue, and cannot be directly impeached, in the first instance, yet, if he himself, first introduces evidence in support of it, the other party shall be permitted to rebut the evidence, by impeaching his general character ; the party himself having put it in issue. The defendant himself laid the foundation of this evidence, by first introducing witnesses in support of his character. Whether the evidence was properly admitted, is not now the question.

It is also insisted, that the court, on the circuit, ought to have compelled Doctor Gilbert, a witness, to answer the questions put to him on the trial of the motion in arrest, relating to certain improper conversations between him and one of the jurors, while the jury had the cause under consideration. It ought to be remarked, that before any particular questions were suggested, a general enquiry appears to have been made, of the witness, relating to the subject matter of the motion, who replied, “ that he knew nothing of any conversation, other than was stated in the motion, to have been held between himself and one Read, a juror.” The only conversation stated in the motion in arrest, between the witness and Read, was one in which both took a part, and consisted of certain remarks and assertions, made by the witness, to which, the juror barely replied or assented. Hence, whatever might have been the conversation, it:⅛ evident, that the witness was a partaker, or at lead, equally concerned with the juror; especially, as the witness was the instigator, and prime mover, of the conversation. This answer contains, first, any declaration or conversation, by any other juror than Read, in the presence or bearing of the witness, relating to the cause. And secondly, a denial of any declaration whatever, made even by Read, in his presence or hearing, except such as had been made by way of reply to his own remarks, and in concurrence with them ; because no other declaration or conversation was detailed in the motion; and the witness had, by his general answer, limited his knowledge of any conversation, to that which was stated in the motion, to have been held between him and Read. In that conversation, it appears from what has already been stated, that he must have been as much impli cated as the juror; and he refused to disclose it, because it was of such a nature, that he could not testify to any part of it, without criminating himself. The general answer of the witness embraced all the particular questions afterwards proposed ; and the court was not bound to require- the answer to be repeated.

The only remaining question relates to the validity of the objection of the witness, (Doct. Gilbert,) to disclose the conversation, which took place between him and the juror. The witness assumed the right of determining whether the disclosure would criminate himself. If he is to be considered as the sole judge of the effect of his testimony, as it relates to himself, it is immaterial whether he decide the question right or wrong. The court, on this principle, can enquire no further. If he testifies, that his disclosures will expose him to be prosecuted criminally, it is conclusive. The court cannot compel a witness against his will, to disclose facts which ⅞;11 expose him to a criminal prosecution. Nemo tenelur •eipfutn acamare. But (he application of this principle, iu every case, so as to preserve the lights of the party, the prerogative of the court and the privilege of the witness, is attended with some difficulty. On the one hand, it may be said, that the witness has no right to deprive the party of the benefit of his testimony, by any false conceit of his own, or an incorrect opinion of the law ; and on the other, it may be contended, that if the court should claim, exclusively, the right to determine in all cases, they must first compel the witness to disclose his answer, before they can decide the que-lion; which would effectually deprive him of the protection which the law intended to afford him. The witness aloue can know what his answer must be ; and he only can determine how it may affect or exposé him. Although the question may appear to the court, to be indifferent, yet, the wiiness may be sensible, that it would supply a link in the chain, which would lead to a conviction for a crime. Such was the question to the Roman Catholic priest, reported ia the books. He alone could see how an answer, agreeable to the truth, would subject him to penalties; and the court had no Juta by which to decide, without first compelling the witness to surrender his privilege, and furnish evidence for his own conviction.

There is a difficulty in establishing a general rule, which will effectually preserve the rights of the witness, and at the same time, protect the party against a corrupt design of the witness, to hide behind the shield.of his privilege, facts important to him, and such as would not implicate the witness.

Rut in this case, there is no necessity of deciding the question. It appears, clearly, that an affirmative answer, would have implicated the witness in a crime; and that a disclosure of any part of the conversation stated to have been held with the juror, would have fixed upon him the crime of Embracery. The conversation with Read, as stated in the motion, consisted entirely of remarks made by the witness, respecting the nature of the cause, and the nature and character of the evidence offered on the trial, or the principles, on which the jury ought to decide the case under their consideration. The remarks thus made, were obviously calculated to influence the juror in favour of one party, and against the other. In - deed, the motion in arrest is grounded upon the undue influ ence or bias, which the conversation was calculated to excite in the mind ol' the juror. This amounts to Embracery ,- which consists in an attempt to influence a jury corruptly : whether this be done by persuasion or bribery, is immaterial. It is acknowledged to be a crime of deep hue, polluting and corrupting the source and fountain of justice; and if the facts stated in the motion, could be proved, both the witness and. juror would be liable to punishment. When the witness, in his answer to the question proposed to him, limited his knowledge respecting the conversation with the juror, to the facts stated in the motion, it must have been perfectly obvious, that he could not disclose the conversation, nor any part of it, without implicating himself in the crime of Embracery. It became the duty of the court, therefore, to protect the witness in the enjoyment of a privilege, which he had a right to claim; and which the law secures to him, upon the soundest principles of policy, and the plainest dictates of reason.

I am of opinion, therefore, that a new trial ought not to be granted.

In this opinion the other Judges severally concurred ; excepting Ingersoll, J., who having been of counsel in the cause, did not judge.

New trial not to be granted