CHAPTER XXV. OF DAMAGES WITH REGARD TO EVIDENCE. As a general rule the plaintiff is not allowed to testify-Exceptions in which he is admitted to give evidence. The witness is to testify only as to facts, and not as to opinions-Exception in case of experts-in case of value. Doctrine of Presumptions. Frequent necessity of being content with imperfect and unsatisfactory proof. We have now to consider the mode of proof by which claims to damage are substantiated. The rules which govern evidence as applied to fix the measure of relief, are neither numerous nor complex, but they deserve careful attention. We have seen (k) that in the early stages of the civil law the plaintiff was allowed to fix the amount of the compensation to which he conceived himself entitled, subject only to the restraining hand of the judex. In the common law, independently of statutory innovation, the rule is carried to the other extreme; for, as a general principle, neither party to the record is allowed to give testimony in any branch of the case. (7) But to this rule certain exceptions were introduced. (1) (k) Ante, 23. (2) In England, in an action of tort, where one defendant joins issue and the other lets judgment go by default, the party who has suffered judgment may give evidence for the plaintiff, if he has no other interest than can be inferred from the fact of his being a party to the record. Haddrick v. Heslop et al., 12 Q. B., 267. A party to the record as such is no longer, in England, incompetent to testify. Worrall v. Jones, 7 Bing., 395. (1) It is one of the natural concomitants of illness and of physical injuries, for the sick or injured person to complain of pain and distress. And evidence of such complaints, in connection of other proofs of injury received, is admissible from the necessity of the case, in an action for the injury sustained, to show its extent, &c. Such The oath of the party is admitted by the common law, in respect of a lost deed, or other paper, preparatory to the introduction of secondary evidence to prove its contents. So, too, in complaints under the bastardy acts, the oath of the female is admitted to charge the defendant with the paternity of the offspring. So, again, the rule has been relaxed in order to prove the amount of compensation to which a party is entitled; [588] thus the oath of the plaintiff is admitted in many States of the Union to prove the truth of entries in his books, of goods delivered in small amounts, or of daily labor performed, when the party, from his situation, has no evidence but the ac'counts kept by himself, and where, as a general thing, from the nature of the traffic or service he cannot have. So, too, where robberies or larcenies have been committed, and no evidence exists but that of the party robbed or plundered, he has been admitted as a witness to prove his loss; for it is said that in these cases the party injured shall have an extraordinary remedy, in odium spoliatoris. On this ground in an action against the hundred under the English statute of Winton, the person robbed was admitted as a witness to prove his loss and the amount of it. (m) So, too, in Pennsylvania, in an action against the county for the destruction of property by a mob, the plaintiff may prove ownership and the value of wearing apparel destroyed, (n) but not the destruction of household furniture, because there the argument ex necessitate does not apply. (o) So, also, in equity, where a man ran away with a casket of jewels, the party injured was admitted as a witness. (p) So, too, when the defendant, a shipmaster, broke open and plundered the plaintiff's trunk, the latter was allowed to testify to the contents of the trunk. (9) An effort has been made in Pennsylvania to extend the principle of these exceptions to all cases of passengers by public con evidence does not fall within the rule which excludes declarations of a party in his own favor. Caldwell v. Murphy, 1 Kern., 416; and see S. C. below, 1 Duer, 283 ; also, to same effect, Bacon v. The Inhabitants of Charlton, 7 Cush. (Mass.), 581. veyances, where there is no criminal nor even tortious act committed by the defendant beyond mere negligence; and it has been said that in such cases the plaintiff may testify from necessity. (r) (1) But in Massachusetts this has been denied; the old principle has been adhered to, and in a case of mere negligence, it has been decided that the plaintiff is not competent, even though he has no other testimony as to the amount of his loss. (8) In New York, the admission of the plaintiff, as a witness in these cases, has been sanctioned by statute; the general railroad act (t) of that State providing, where baggage is properly checked, that if not delivered on the production of the check, "the plaintiff may himself be a witness, in any suit brought by him, to prove the contents and value of said baggage." (u) The original rule of the common law has been now, however, so far changed, both in England and in this country, by statute, that the observations contained in the preceding paragraphs have little importance. In England, New York, Connecticut, and several other States of the Union the rule of the common law has been abrogated, and, with more or fewer exceptions, parties are permitted to testify in chief and to all facts pertinent to the case. Another general rule, which pervades all our law, is that the witness is to testify only to facts. He is to speak [589] as to the facts which he has heard or seen. His opinion is not to be given; for it is the opinion of the jury on the testimony, which forms the verdict and decides the case. But to this rule, again, there are many important exceptions. So, pedigree is (r) Whitesell v. Crane, 8 Watts & S., 369. (8) Snow v. Eastern R. R. Co., 12 Met., 44, (t) Laws of 1850, chap. 140, § 37. plicable to all the railroads existing in the State, see Marsh v. New York & Erie R. R. Co., 14 Barb. S. C. R., 364, and Milliman v. Oswego & Syracuse R. R. Co., 10 Barb., 87. (1) The following cases sustain the position that the plaintiff himself, in an action against a common carrier to recover for a trunk, &c., lost, is a competent witness to prove its contents. Doyle v. Kiser, 6 Ind., 242. The Mad River & Lake Erie Railroad Company v. Fulton, 20 Ohio, 318. The same rule was applied in the case of an innkeeper, in Taylor v. Monnot, 1 Abbotts' (N. ́Y.) Pr. R., 325. S. C., 4 Duer, 116. But in Garvey v. The Camden & Amboy Railroad Company (4 Abbotts' N. Y. Pr. R., 171), it was held, that the rule of evidence which allows the plaintiff in an action against a common carrier to recover for a lost trunk, &c., to prove the value of the contents by his own oath, is confined to cases in which fraud or wrong is proved upon the defendant; and has no application to cases of loss through negligence merely. To the same effect is Phenix v. Clark, 3 Mich, 51. often proved by the hearsay of the family. So, handwriting is proved by the opinions of those familiar with the signature of the party. So, too, the witness has been allowed to state his opinion in cases of criminal conversation, to show the state of the affections of the parties. (v) And, on similar grounds, in cases of breach of promise of marriage. In an action of the latter description, the Supreme Court of New York said, "We do not see how the various facts upon which an opinion of the plaintiff's attachment must be grounded, are capable of specification, so as to leave it, like ordinary facts, as a matter of inference to the jury. It is true as a general rule, that witnesses are not allowed to give their opinions to a jury; but there are exceptions, and we think this one of them. There are a thousand things indicating the existence of degrees of the tender passion, which language cannot specify. The opinions of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to a jury." (w) So, too, evidence of this kind has been admitted in cases of insanity; but it has been pronounced by a very able judge, "the most unsatisfactory and the least to be depended on." (x) The general rule which requires a witness to speak to facts within his knowledge, is applied to the subject of compensation: the damage must be proved like any other fact in the cause, and no testimony amounting to mere opinion is competent. (1) So in New York, a witness cannot be allowed to give his opinion as to the amount of damages sustained by a party in consequence of a mill lying still. (y) So, the opinions of witnesses as to the amount of damages caused by the deprivation or withdrawal of water from a tavern, are inadmissible. (2) So, too, on (v) Trelawney v. Coleman, 2 Starkie, 168, 191. (w) M'Kee v. Nelson, 4 Cow., 355. (x) Clark v. Fisher, 1 Paige, 171. (y) Doolittle v. Eddy, 7 Barb. S. C. R., 75. (z) Harger v. Edmonds, 4 Barb. S. C. R., 256. Giles v. O'Toole, Id., 261. (1) Cook v. Brockway, 21 Barb. (N. Y.) 331; Wilcox v. Lake, 11 La. Ann., 178. The value of skilled services are to be estimated not by inquiring what A or B would charge for such services, but what the services are fairly worth by the common usage or custom of compensation; and it is error to receive the testimony of witnesses as to what they would charge for such services. Pfeil v. Kemper, 3 Wis., 815. ascertaining the injury caused by an alleged nuisance, a [590] witness cannot give his opinion as to the amount of damages. (a) (1) So in an action for the breach of a covenant contained in a lease, that the defendant would not let any other mill site on the same stream, it was held not proper to admit witnesses to testify their opinion as to the amount of damage which the plaintiff's had sustained by the erection of the rival site, and a new trial was ordered. (b) And the correctness of the principle laid down in this case has been very recently affirmed. (c) On the same ground, and with still stronger reason, it has been decided in Ohio that a person who is present during the trial of a cause, and has heard witnesses describe the manner in which a ford is injured by the erection of a dam across a stream of water below it, is not competent to give his opinion of the damages sustained by the party injured. (d) So, intelligent merchants, well acquainted with the plaintiff and his business, were held not competent to give an opinion as to the damage of the plaintiff in being deprived of the advantage of his own care and oversight. (e) To the general rule that the witness's opinion cannot be received as to the amount or character of injury sustained, there are, however, some considerable exceptions. Of these, perhaps the most comprehensive and important is that which admits persons. of science, or experts in any profession, to testify as to their opinion on a given state of facts relating to matters in regard to which their education gives them peculiar capacity for forming a correct judgment. (ƒ) So in Massachusetts, on the trial of an action to recover damages for injury done to the plaintiff's garden and nursery by smoke, heat, and gas proceeding from the defendant's brick kiln, two gardeners who had had much experience in raising and cultivating fruit trees, shrubs, and plants, and who had testified to (a) Fish v. Dodge, 4 Denio, 311. (b) Norman v. Wells, 17 Wend., 137, 161. (c) Fish v. Dodge, 4 Denio, 311, 318. (d) Shepherd v. Willis, 19 Ohio, 142. (e) 23 Wend., 431; 17 Wend., 161; 24 Wend., 688; 21 Wend., 342. (ƒ) Folks v. Chad. 3 Doug., 157. (1) As a general rule, the opinion of a witness as to the amount of damages which the land-holder will sustain by reason of the construction and use of a railroad, is not evidence. Atlantic & Great Western R. R. Co. v. Campbell, 4 Ohio St., 583. |