145 N.C. 383 | N.C. | 1907
Lead Opinion
after stating the facts: The learned counsel for defendant pressed the exceptions to the admission of the statement of witnesses, based upon personal knowledge and observation, that insured, at the time of his application, was not intemperate in the use of spirituous liquors. The argument assumes that the testimony comes within the definition of “opinion evidence.” Plaintiff insists that, properly interpreted, it is the statement by the witness of a fact, and not the expression of an opinion. It has been said that, “if the witness had opportunity to know relevant facts himself, and did observe and note them,” his evidence, although expressed in the form of an opinion, is really the statement of a fact. Gilliland v. Board of Education, 141 N. C., 482, citing Greenleaf Ev. (16th Ed.), 441. It is very difficult to draw the line between testimony in which the witness states a fact — - ascertained from observation, sensation or other media — and that in which he gives expression to an opinion by observing a number of facts from which, by a mental operation, he comes to a conclusion. Judges have felt themselves embarrassed by the general rule that, except within certain limitations, only facts, as distinguished from conclusions or opinions, were competent to be given in evidence. It is not improbable that too much refinement has found its way into judicial opinions, and that the practical side of the subject has suffered at the expense of substantial truth and justice. The effort to relieve the law from what has been termed pedantry, and to place it upon a basis suited to the practical affairs of life, in this respect, is both interesting and instructive. Probably in our jurisprudence the most successful and well-sustained effort in this respect is found in the opinion of Gaston, J., in Clary v. Clary, 24 N. C., 78, referred to by Judge Redfield as being done “with great ability and abundant success.” Redfield
It may be well to keep in view that this class of testimony is not to be confused with “expert evidence.” There the opinion of the witness is admitted, not because he has knowledge of the matter or conditions in regard to which he testifies, but, upon an assumed state of facts, sustained by evidence, he, by reason of his skill or learning, is competent to form opinions. The distinction is clearly stated in McICel-vey Evidence, 176, et seq. The defendant complains that a large number of witnesses, many of them of great weight in the community, were permitted to testify. The obvious answer to this objection is, that if insured was known to a large number of persons — his habits, .conduct, demeanor, etc.-1 — and they all concur in the conclusion, formed from knowledge, that he was temperate, the question is thereby removed from the plane of conjecture — opinion—and placed upon “hard fact.” AVe are of the opinion, both upon reason and authority, that the testimony to which exception was taken was properly admitted.
The Court could not have directed the jury to answer the issue as a matter of law. The affirmative was upon the defendant, and certainly it could not be said that there was not ample room for more than one conclusion by fair-minded men. In the brief the first, second, fifth and ninth assignments of error are conceded to involve this contention. The sixth and seventh assignments raise the much-discussed question regarding the weight to be attached to positive and negative testimony. AAA do not think that the rule for which defendant
We find no reversible error. The judgment must be
Affirmed.
Concurrence Opinion
concurring: The opinion of the Court in this case does not conflict, as I understand it, with the rule of evidence that a witness cannot give his opinion in answer to a question which involves a matter of law as one of its ingredients, as, for example, whether a certain person had or had not sufficient mental capacity to execute a deed or will, or to make a contract; what is mental capacity and the standard by which it is to be gauged, being questions of law. I adhere to what I said in the case of In re Peterson, 136 N. C., 28, and concur in the decision of the Court in this case, because I do not- think the questions which are now ruled to be competent fall within the principle discussed by me in that case. There is a wide difference between mental condition or soundness and mental capacity, and if this difference is carefully regarded, most of the cases in our reports can easily be recon-
Although concurring with the Court, I have discussed this matter in a separate opinion because it is considered by me as very important to preserve the true and proper distinction which separates competent from incompetent evidence; otherwise great injustice may he done in the trial of causes.