69 So. 902 | Ala. | 1915
The assignments of error are based on the rulings of the court on evidence. The bill of exceptions does not set out the testimony in full. The recital
A question objected to, and the court’s ruling thereon, must be tested by its form in connection with the statement of counsel to the court as to- what was expected to be proved by the witness. If the question is improper in form, the statement of counsel will not put the court in error. ' This question called for hearsay testimony. The question, if in proper form, does not, however, come within the rule declared in Southern Ry. Co. v. Lefan, 70 South. 249.
The objections to question propounded to- witnesses Sarah Spencer and Jim Eastman make it necessary to consider the law on the question of a nonexpert giving opinion evidence touching sanity or insanity. The great weight of general authority is that the opinions of ordinary witnesses is admissible on the question of the sanity or the insanity of a person, upon the obvious ground that it is often impossible for a witness to adequately describe to the court or jury the actions, looks, and symptoms, which form the basis for determining the question. — Jones on Ev. (2d Ed.) § 364, and the many authorities cited in support of the text; 3 Wigmore on Ev. §§ 1933-1938. The opinions of nonprofessional wit
In Norris v. State, 16 Ala. 776, 778, 779, Mr. Justice Chilton said: “But upon the question of sanity or in
Defendant objected, on the ground that the question called for an “unauthorized conclusion of the witness,” and duly excepted to the ruling of the court. The witness answered: “He had a good mind before he got hurt, but now— Q. And what now? A. He had a good mind until he got hurt, but he hasn’t got any mind now. Q. How does he manifest it, if you can explain to the jury; since this injury what difference do you see, if any? A. He. has a deafness, and he "can’t hear good, and he hasn’t got real good mind now. I talk with my son sometimes, not much, and when I talk with him he does not talk connectedly along; he don’t talk like he used to. His mind ain’t as good as it used to be.”
The witness, having shown constant opportunity to observe, and that she did daily observe, the plaintiff, who lived with her all the time, was properly permitted to give in evidence his expressions of pain and suffering from the injury, to describe the injury, and the impairment of his hearing, and to state the facts on which she based her statement that there was a change in plaintiff’s mental condition after the injury, and to state what that change was. She had qualified as a nonexpert, and the court properly permitted her to answer the several questions propounded, on which the assignments of error are based. — Ford v. State, supra; Parsons v. State, supra; Parrish v. State, supra; Caddell v. State, supra; Dominick v. Randolph, supra; Burney v. Torrey, supra; Florey’s Ex'rs v. Florey, 24 Ala. 247.
The bill of exceptions recites that: “Plaintiff was brought before the jury, to show the place where the leg was amputated. He was not examined as a witness. The only evidence as to plaintiff’s mental condition, and the only evidence as to why plaintiff did not take the stand as a witness, was the evidence, set out, of Jim Eastman and Sarah Spencer; but several witnesses for the defendant testified that they had not observed any change in the plaintiff’s mental condition since the accident.”
The cause was submitted on the eighth count, claiming damages for an injury which caused plaintiff’s leg to be amputated above the knee, with the proximate consequence that he was caused to suffer, and would likely continue throughout his natural life to suffer, great mental and physical pain and anguish and mental disquietude, and that he was permanently injured.
Appellant, in brief of counsel, concludes the discussion of the evidence of this witness with the statement: “The court was in error in allowing the witness to state that the plaintiff’s recollection was not as good as it was before, since this statement was only a conclusion of the witness and not the statement of any fact.”
The position of counsel is untenable. The declarations objected to were of the fact of a changed condition of the plaintiff by reason of physical injury, being statements touching the degree of intelligence as affected thereby. The replies of the witnesses were not statements of opinion as to the existence of insanity, but were conclusions of fact.
The issue was liability vel non for personal injury, and, if liability, its extent. Thus insanity was not the issue being tried, but the extent of physical injury that had not only affected the body of the plantiff, but somewhat impaired his memory and mind.
Much of appellant’s brief treats of cases where witnesses were required to give opinions as to the mental capacity of a given person to do, or to refrain from doing, a certain act. Such is not the question before
In the case of Heddles v. Chicago & Northwestern R. Co., 77 Wis. 228, 234, 46 N. W. 115, 117, 20 Am. St. Rep. 106-112, it is said: “The seventh error assigned was the overruling of an objection to the following question asked of the father of the plaintiff: ‘What was the boy’s temper before he was injured?’ The answer was: ‘He was of bright and cheerful temper. Now he is very irritable, and, if anything excites him, he seems to be uncontrollable.’ It would seem that the question was a very proper one, as showing that the boy’s mental condition was sound before the injury; and we are also of the opinion that the answer as to his mental condition after the injury, although not responsive to the question, was admissible. It would seem that, if an injury caused a permanent mental defect or disease, it would be equally as good ground for the recovery of damages as though a physical defect or a disease was the result.”
Their long familiarity with, and cpntinuous observation of, the plaintiff, qualified the mother and the uncle of the plaintiff to testify to the degree of his intelligence before, and the degree after, the injury ;• their statements in'this behalf being conclusions of fact, and not opinion evidence. It was permissible — and not even objected to on the trial — for his mother to state of his former intelligence that he “was a bright, smart boy, of good intelligence,” before he got hurt. This was but a conclusion of fact from her long association with and observation of him. The statement touching his intelligence, after the injury, was no less a conclusion of fact, shown
In 17 Cyc. p. 86, it is said: “A witness may, after enumerating such as he can of the constituent facts, state the effect on his mind of the numerous phenomena which constitute the impression of appearance, whether of animate or inanimate objects; it being affirmatively shown that the witness had adequate opportunities for observation, that the constituent facts cannot be fully placed before the jury, and that the ultimate fact is relevant to the issue.”
Many authorities are cited in support of this text.
In Brownell v. People, 38 Mich. 732, it is said: “A witness may state an inference as to- the bodily condition in 'some relevant particular of one person as compared to that of another.”
In Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 53 L. R. A. 586, it is said: “The testimony of a lay witness, the wife and acquaintance of one injured in a collision, that before the accident he was a healthy looking man, a strong laborer, and since then he looked thin and pale, was more quiet in manner, and did not hear so well; that he came home after the accident in an excited condition and complained of pain in his head, and back- — was not objectionable as being expert opinion evidence.”
In Burton v. State, 107 Ala. 108, 18 South. 284, it is said: “The court did not err in allowing the witness to testify that he saw the defendant, a short time after the gunshots were heard, which it is supposed resulted in the death of the deceased, and that ‘he looked a little'
In South & North Alabama, R. Co. v. McLendon, 63 Ala. 266-277, it was held, touching such expressions in the testimony of witnesses, as that a person “seemed to be suffering during the time, * * * was not able to return, * * * was not able to use her arm a large part of the time for several months, * * * the left wrist of plaintiff looked like the bone had slipped off the joint, * * * she looked bad, * * * was disabled, etc.” — that all of these, were “but facts, or, at most, conclusions of fact; awkwardly expressed sometimes, it is true; still, we find in them nothing to which a witness may not testify.”
In Jenkins v. State, 82 Ala. 25, 2 South. 150, it was held that “anger, or bad temper, can be proved in no other way.” — Carney v. State, 79 Ala. 14.
In Clark v. Clark, 168 Mass. 523, 47 N. E. 510, a lay witness was allowed to testify that a party “failed in mental capacity.”
In White v. State, 103 Ala. 72, 16 South. 63, a witness was allowed to testify that a witness “talked with his usual intelligence.” — Lawson on Expert and Opinion Ev. 473.
In Reeves v. State, 96 Ala. 33, 11 South. 296, a witness testified that “the witness was talking mad.” And in Perry v. State, 87 Ala. 33, 6 South. 425, a witness was allowed to testify that a certain object “looked like it had been struck with a hot iron, and looked scarred,” as a conclusion of fact.
In Birmingham Railway & Electric Co. v. Franscomb, 124 Ala. 621, 27 South. 508, it Avas said: “The witness Dyer, in speaking of plaintiff’s physical condition Avhile in the hospital, stated that 'he seemed to be very weak.’ This was objected to by the defendant, and motion was made to exclude the same, which was overruled. This was but an equivalent of the expression that 'he appeared to be very weak,’ and consequently was nothing more than the statement of a fact, or, at most, a conclusion of fact. If the adverse party wished to know
In the case at bar neither of the witnesses was asked whether the plaintiff was sane or insane. No such issue is presented by the evidence. The value or correctness of the conclusions of fact given by these two witnesses conld have been brought out by cross-examination. The defendant had this opportunity for cross-examination of the plaintiff, and introduced evidence tending to rebut the statements of the changed degree of plaintiff’s intelligence after the injury.
No rule for the giving of testimony by nonexpert witnesses, in cases where insanity is the issue or is pleaded as a defense for crime, has been violated by the court’s rulings on the admission of evidence.
The judgment is affirmed.
Affirmed.