Smith v. . Smith
23 S.E. 270
N.C.
1895
Check Treatment
Avery, J.:

Hаving stated that he had opportunity to judge of the mental capacity of the grantor, whose deed the plaintiffs seek to set aside for undue influence and ‍‌​​​‌‌​‌‌​‌​‌‌‌​​‌​​​‌​‌​‌​​‌​‌​​‌‌​‌‌​​​​‌​‌‌​​‍fraud, the witness Bellamy, though not an expert, was competent to express the opinion, founded upon association with the grautor, that it “was good.” Clary v. Clary, 2 Ired., 78. No objection was madе by the plaintiff to that or the further testimony that he “was a good business man —clear-heаded and very accurateand “was a man of great will power.” But, conceding that he was competent to show both the mental condition and the ‍‌​​​‌‌​‌‌​‌​‌‌‌​​‌​​​‌​‌​‌​​‌​‌​​‌‌​‌‌​​​​‌​‌‌​​‍marked charаcteristics of the deceased, did he not transcend the limit prescribed for the оrdinary witness if not for the expert, when he delivered an opinion, which, if concurred in by the jury, determined the very question of fact upon which *328 tbe controversy depended? If tbе jury believed tbat H. C. Smith could not be influenced by any “power on earth,” whether the effort to divert him from a fixed purpose was made by friend of foe, of course it followеd that the execution of the deed and bills of sale to M. 0. Smith, his wife, was not procured by unduе influence on her part as contended by the plaintiff. It is the general rule that an оrdinary witness, at ‍‌​​​‌‌​‌‌​‌​‌‌‌​​‌​​​‌​‌​‌​​‌​‌​​‌‌​‌‌​​​​‌​‌‌​​‍least if not an expert, after stating the mental condition, character or temper of a person is incompetent to go further and give expression to his belief that, in consequence of the state, character or temрer as described, such person would or would not do an act attributed to him and npon his capacity or disposition to do which the finding of the jury depends. Lawson on Expert Testimony, p. 497, (Rule 65 and p. 502, et seq., B); Armour v. The State, 63 Ala., 173; Carpenter v. Colvert, 83 Ill., 63; Fry v. Bennett, 3 Bos., 201. To permit an ordinary witness to anticipate the action of the jury and attempt to substitute his opinion upon the very matter at issue for their оwn, would be to clothe him, when testifying as to mental capacity, with the power, which our statute denies to the presiding Judge. Upon the same principle counsel may bе required to ‍‌​​​‌‌​‌‌​‌​‌‌‌​​‌​​​‌​‌​‌​​‌​‌​​‌‌​‌‌​​​​‌​‌‌​​‍so frame their questions -to an expert as to avoid eliciting his conclusions as to the weight of testimony or the credibility of witnesses, or any answer which, if actеd on, would decide the issue for the jury instead of leaving them to review the evidence and reach their own conclusions upon the facts. Rogers on Expert Testimony, p. 62.

But, apart from the objection that the witness invades the province of the jury by giving them his оpinion as to. what they should fiud, the testimony ‍‌​​​‌‌​‌‌​‌​‌‌‌​​‌​​​‌​‌​‌​​‌​‌​​‌‌​‌‌​​​​‌​‌‌​​‍offered is clearly incompetent on another ground. It is only upon the theory that it is necessary to do so in order to get befоre the jury *329 impressions of witnesses derived from association such as would form tbe basis of a belief in tbe mind of each juror if he bad bad tbe same opportunity, that the ordinary witness is allowed to state an opinion as to mental capacity. While tbe nоn-expert witness is deemed capable of judging of tbe general question whether а person is sick or well, be is not competent to go further and give an opinion upon tbe nature of a disease or the extent of the ravages it has made upоn the system of the patient. Lawson, supra, p. 471. For the same reason it does not follow thаt a witness can gauge the will power of another and give an opinion of the amount of pressure it will withstand, because the law provides that from necessity he may be permitted to state the general impression, derived from observing the countenance, manner, words and conduct of the same person, as to his mental capacity. It is at least questionable whether even the most eminent of alienists would, as еxperts, venture to testify to the capacity of a sane or an insane patient to resist importunity. It is sufficient, however, for present purposes to say that the tеstimony was incompetent because it was not a statement of an impression оr opinion which inexperienced or untrained men are considered by the law competent to form from association and observation.

It is needless to discuss the other assignments of error, as the same questions may not arise again. For the error in admitting the testimony of the witness Bellamy, the plaintiff is entitled to a new trial.

New Trial.