The opinion of the court was delivered by
Steele, J.
The issue on the trial below was upon the testamentary capacity of Joshua Wetherbee, when he executed the will in question, April 8th, 1861. In the previous February the witness, Thayer, a physician and expert, visited him professionally and found [460] him at that time diseased in body and mind and mentally incapable of transacting business understandingly. How far his condition on the last of February would tend to prove his condition on the 8th of April, would depend very much upon the nature of his disease. The contestants claimed that the disease under which he was suffering, was a softening of the brain. To establish this they were permitted, against objection, to prove by the same witness, Thayer, his opinion to that effect, based, as he said, in part upon his own examination, but mainly upon what he was told on that occasion, for the purpose of that examination, out of the patients presence, of his previous symptoms and condition by one Dr. Cram, who was the patient’s attending physician during his whole illness. It appeared that Dr. Cram deceased before the trial, and that Dr. Thayer’s visit to the patient was at Dr. Cram’s request and in his company.
It does not appear from the case before us that Dr. Thayer did or could form any opinion of the disease by examination alone, unaided by Dr. Cram’s relation to him of the patient’s previous symptoms and condition, nor does it appear that Dr. Cram’s relation was truthful and correct, nor that it corresponded with the state of facts which the testimony on either side tended to establish.
The question before us is whether the objection to Dr. Thayer’s testimony of his opinion was well taken.
I. Experts are permitted to state in their testimony their opinions derived from a state of facts-which the evidence on behalf of either party tends to prove. That evidence may be from the expert himself if he has personal knowledge of the facts, it may be from others who have such knowledge, or it may be in part from both. In any case the jury ought to know upon what basis of facts the opinion is founded, for its pertinence depends upon whether they find the facts upon which it rests. In Dickinson v. Barber, 9 Mass., 227, the court in rejecting depositions in which opinions were stated without the facts upon which they were formed, use this language : “ the opinions of professional gentlemen are not to be received as evidence unless predicated upon facts testified either by them or others.” The propriety of this rule would be instantly appreciated if a foreign lawyer, in a case where he would be an expert, should offer to' testify that, from what he had seen and heard of the controversy, he was of opinion the de[461] fendant was liable. This might do, if the facts were agreed upon, and the only controversy was upon their legal effect — but the facts, which form the basis of an expert opinion, must, unless conceded, be proven.
If we should admit that the repetition of Dr. Cram’s declarations by Thayer would not be evidence to prove the truth of the facts out of which Thayer’s opinion was made up, it would not matter whether they were repeated or not, for, in either case, the opinion would be without a basis in testimony, and would be inadmissible.
If the contestants had introduced testimony, which tended to prove such symptoms as Cram related, it would have been easy to inquire of the witness his opinion of the disease, if, in addition to what he saw himself, it had previously developed such symptoms.
With such testimony Dr. Cram’s declarations (still admitting them to be not evidence) would be objectionable because likely, though not legitimate proof, to be considered by the jury in deciding the question of the existence of such symptoms. Without such testimony the opinion would rest upon facts not in proof and beyond the power of the jury to find, and therefore would not be pertinent to the case.
II. The question then reduces itself to this: "Were the declarations of Dr. Cram, if proven, competent testimony to be weighed on the question of what the patient’s previous symptoms were ? The general rule is that the declarations of third persons out of court, made without the restraint of an oath and without the criticism of a cross-examination, are inadmissible. Do the circumstances of these declarations make them an exception ?
1. The decease of Dr. Cram cannot make them exceptional. They were not dying declarations, nor given as testimony at a former trial. It is the ordinary case of the death of a witness. His decease makes it more desirable to the party to use his declarations, but does not alter the rule of their admissibility.
2. His professional character cannot make them exceptional. It may add to their reliability, but cannot make them evidence without the usual guards of proof in courts of law.
3. No such agency existed as would make them exceptional. The relation $f patient and medical attendant does not of itself con[462] stitute 1he physician an agent to bind the patient by what he says to> another physician of his patient’s feelings and symptoms. That doctrine of the law of contracts which permits proof of the admissions of agents under certain circumstances does not apply to a matter of this nature.
4. No reason exists ab inconvenienti why courts should make this class of declarations exceptional. The death of a witness is always liable to create hardship, but in such a case as this it would seem very probable that the actual condition and symptoms could be shown by others, and Dr. Thayer’s opinion predicated upon such proof and what he saw himself could be obtained. Such testimony would come within the rule of Fairchild et al. v. Bascomb, et al., 35 Vt., 400. The consulting physician usually and properly obtains information from the patient’s attendants, but unless the case is clear enough, or he remains long enough to enable him from what he sees himself, together with what he learns from the patient, to form an opinion, it is no-extraordinary rule, productive of unusual inconvenience, that requires the attendants or some other persons to be called as witnesses to prove the real existence of the state of facts upon which the physician proposes to testify as an expert.
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The opinion of the court was delivered by
Steele, J.
The issue on the trial below was upon the testamentary capacity of Joshua Wetherbee, when he executed the will in question, April 8th, 1861. In the previous February the witness, Thayer, a physician and expert, visited him professionally and found [460] him at that time diseased in body and mind and mentally incapable of transacting business understandingly. How far his condition on the last of February would tend to prove his condition on the 8th of April, would depend very much upon the nature of his disease. The contestants claimed that the disease under which he was suffering, was a softening of the brain. To establish this they were permitted, against objection, to prove by the same witness, Thayer, his opinion to that effect, based, as he said, in part upon his own examination, but mainly upon what he was told on that occasion, for the purpose of that examination, out of the patients presence, of his previous symptoms and condition by one Dr. Cram, who was the patient’s attending physician during his whole illness. It appeared that Dr. Cram deceased before the trial, and that Dr. Thayer’s visit to the patient was at Dr. Cram’s request and in his company.
It does not appear from the case before us that Dr. Thayer did or could form any opinion of the disease by examination alone, unaided by Dr. Cram’s relation to him of the patient’s previous symptoms and condition, nor does it appear that Dr. Cram’s relation was truthful and correct, nor that it corresponded with the state of facts which the testimony on either side tended to establish.
The question before us is whether the objection to Dr. Thayer’s testimony of his opinion was well taken.
I. Experts are permitted to state in their testimony their opinions derived from a state of facts-which the evidence on behalf of either party tends to prove. That evidence may be from the expert himself if he has personal knowledge of the facts, it may be from others who have such knowledge, or it may be in part from both. In any case the jury ought to know upon what basis of facts the opinion is founded, for its pertinence depends upon whether they find the facts upon which it rests. In Dickinson v. Barber, 9 Mass., 227, the court in rejecting depositions in which opinions were stated without the facts upon which they were formed, use this language : “ the opinions of professional gentlemen are not to be received as evidence unless predicated upon facts testified either by them or others.” The propriety of this rule would be instantly appreciated if a foreign lawyer, in a case where he would be an expert, should offer to' testify that, from what he had seen and heard of the controversy, he was of opinion the de[461] fendant was liable. This might do, if the facts were agreed upon, and the only controversy was upon their legal effect — but the facts, which form the basis of an expert opinion, must, unless conceded, be proven.
If we should admit that the repetition of Dr. Cram’s declarations by Thayer would not be evidence to prove the truth of the facts out of which Thayer’s opinion was made up, it would not matter whether they were repeated or not, for, in either case, the opinion would be without a basis in testimony, and would be inadmissible.
If the contestants had introduced testimony, which tended to prove such symptoms as Cram related, it would have been easy to inquire of the witness his opinion of the disease, if, in addition to what he saw himself, it had previously developed such symptoms.
With such testimony Dr. Cram’s declarations (still admitting them to be not evidence) would be objectionable because likely, though not legitimate proof, to be considered by the jury in deciding the question of the existence of such symptoms. Without such testimony the opinion would rest upon facts not in proof and beyond the power of the jury to find, and therefore would not be pertinent to the case.
II. The question then reduces itself to this: "Were the declarations of Dr. Cram, if proven, competent testimony to be weighed on the question of what the patient’s previous symptoms were ? The general rule is that the declarations of third persons out of court, made without the restraint of an oath and without the criticism of a cross-examination, are inadmissible. Do the circumstances of these declarations make them an exception ?
1. The decease of Dr. Cram cannot make them exceptional. They were not dying declarations, nor given as testimony at a former trial. It is the ordinary case of the death of a witness. His decease makes it more desirable to the party to use his declarations, but does not alter the rule of their admissibility.
2. His professional character cannot make them exceptional. It may add to their reliability, but cannot make them evidence without the usual guards of proof in courts of law.
3. No such agency existed as would make them exceptional. The relation $f patient and medical attendant does not of itself con[462] stitute 1he physician an agent to bind the patient by what he says to> another physician of his patient’s feelings and symptoms. That doctrine of the law of contracts which permits proof of the admissions of agents under certain circumstances does not apply to a matter of this nature.
4. No reason exists ab inconvenienti why courts should make this class of declarations exceptional. The death of a witness is always liable to create hardship, but in such a case as this it would seem very probable that the actual condition and symptoms could be shown by others, and Dr. Thayer’s opinion predicated upon such proof and what he saw himself could be obtained. Such testimony would come within the rule of Fairchild et al. v. Bascomb, et al., 35 Vt., 400. The consulting physician usually and properly obtains information from the patient’s attendants, but unless the case is clear enough, or he remains long enough to enable him from what he sees himself, together with what he learns from the patient, to form an opinion, it is no-extraordinary rule, productive of unusual inconvenience, that requires the attendants or some other persons to be called as witnesses to prove the real existence of the state of facts upon which the physician proposes to testify as an expert.
5. It is claimed that the reasoning which allows as evidence the patient’s complaints and declarations, made at the time of suffering and of submission to the treatment of his physician, applies as well to the report of them which the attending physician gives the consulting physician ; and that this report, made out of the patient’s presence, may be proven as part of the res gestae ; or, in other words, that, if when the patient’s symptoms and condition-are in issue, we ought to consider what the patient said and how he acted, we should by parity of reasoning consider upon the same issue what his physician said and how he acted in consulting another physician. What one says in acting, as in paying .money, delivering goods or striking a blow, accompanying, explaining and characterizing the act, may, within proper limits, be proven when the act is in issue. The meaning of the act is drawn from the words. It is a verbal act. The party may prove his own act and his words which are a constitutive part of it. Such words are called a part of the res gestae. Akin to this rule is that which permits one whose sensations are in issue to [463] prove under certain restrictions what he said at the time. This doctrine is founded upon the fact that, in the nature of things, this is the best and often the only proof of which the case admits. It is chiefly upon the latter principle that the patient’s statements are held competent proof of his sensations and condition. Dr. Cram’s declarations, out of court, would clearly be irregular if considered merely as a repetition of these statements. But, conceding the patient’s declarations to be admissible, upon the former principle, still the declarations of Dr. Cram would stand upon a ground quite distinguishable,from them, both as to means of knowledge and inducement to truthfulness. The patient knows his sensations, and he only ; he understands that his life and health depend on the correctness of his report of them to his physician and attendants. No one testifies that Dr. Cram repeats them correctly. Indeed, the main effort of the physician might be to so state the case in the patient’s absence as to justify his past treatment of it, to the consulting physician.
Nor can the fact that the words accompanied the act of consultation make them a part of the res gestae. The consultations between the physicians is not the thing in issue. The information there given does not bear that close relation to the principal act or thing in dispute, which is necessary in order to make it a part of that act or thing. It is mere declaration. Dr. Thayer’s testimony of it, or of an opinion mainly made up of it, was testimony of hearsay, and should not have been received.
.In Heald v. Thing, 45 Me. 392, an offer to prove the declarations of the patient’s attendants to the physician called as counsel, was refused, and such testimony and expert opinions predicated upon such declarations were held by the entire court to be inadmissible.
We have not thought it important to discuss the other questions. Some of them were abandoned by the excepting party, and in none of them, after giving the bill of exceptions a fair and reasonable construction, do we find any error. The objection to Dr. Thayer’s testimony being in our opinion well taken, the judgment of the county court is reversed, and the case is remanded for a new trial.