Inhabitants of Ashland v. Inhabitants of Marlborough

Chapman, J.

The question in issue between the parties was, whether Maynard, who enlisted into the service of the United States on the 2d of July 1861, became disabled by disease con *48 tracted in the service, or whether he had the disease before he enliste!. One species of the evidence which was offered to prove that he was diseased before he enlisted was his own language. The principle which applies to such evidence is stated in Bacon v. Charlton, 7 Cush. 586 . Evidence of the usual and natural expression of present feelings or emotions is admissible, though it consist wholly or partly of words. But such evidence is not to be unnecessarily extended, and is not to include narration of what is past. A physician, who is called as an expert, may testify to the statements which a sick or injured person made to him as his patient, for the purpose of obtaining his professional aid, as to the character and seat of his injuries and sensations, and describing his condition and symptoms. Barber v. Merriam, 11 Allen, 322 . But a physician’s testimony cannot include a recital of past events which his patient made to him. Chapin v. Marlborough, 9 Gray, 244 . Emerson v. Lowell Gas Light Co. 6 Allen, 146 .

A person who is not an expert may testify to the acts and appearance of another which indicate disease or disability, or the contrary; but may not give opinions on the subject.

Upon the principles above stated, the evidence of Maynard’s statement as to what Dr. Jackson had told him ; and as to his having had a complaint before he went into the army ; and the opinion of a witness who was not an expert that he did not appear like a well man ; were inadmissible.

It is not necessary to state the application of these principles to every particular of the evidence offered, for upon a new trial the evidence may be varied ; and the principles stated are suffie lent guides in the admission or exclusion of evidence.

Exceptions sustained.