Kelly v. Cunningham

36 Ala. 78 | Ala. | 1860

A. J. WALKER, O. J.

“Whenever the bodily cr mental feelings of an individual are, material tobe .proved, the usual expressions of such feelings, made at the time in question, are original evidence. So, also, the representations by a sick person, of the nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence.” — Rowland v. Walker, 18 Ala. 749; Eckles & Brown v. Bates, 26 ib. 655; Phillips v. Kelly, 29 ib. 628; Holloway v. Cotten, 33 ib. 529; Blackman v. Johnson, 35 ib. 252. These declarations aro admitted, to the extent indicated, on a principle of necessity, and as a part of the res gestee, whether made to a. physician or not, and whether made by a slave or a free person. But the principle does not include declarations which do not describe the feelings of the declarant, or the symptoms and effects of his malady, but which simply declare the existence and past .duration of a disease, in the detection and proper denomination of which some degree of skill ia necessary. The declarations of' the slave, “that he had the dropsy, that it was an old disease, and had been on him a long time”, were' inadmissible!

[2.] The plaintiff’s right to recover the reasonable charges of the physicians who attended upon the diseased slave, .did not depend upon the fact of his having paid them. — Garrett & Hill v. Logan, 19 Ala. 344; Miller v. Garrett, 35 ib. 96.

The judgment is reversed, and the cause remanded.