Taylor v. Security Life & Annuity Co.

CoNNOR, L, 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 — 390 — on Wills, .143, note 16. Professor Wigmore thus refers to this opinion and that of Justice Doe, of New Hampshire. After referring to the controversy regarding the admissibility of the class of testimony presented in this appeal, he says: “Generally, the view favoring admission prevailed; the great lawmaking and argument-furnishing precedent for the earlier rulings being the opinion of Mr. Justice Gaston in Clary v. Clary, in North Carolina, in 1841, and for the-more recent rulings being the opinions of Mr. Justice Doe, dissenting in Boardman v. Woodman, 47 N. H., 144, and Mr. Justice Foster, in Hardy v. Merrell, 59 N. H., 250, in the same court, in 1815. The opinion of Mr. Justice Doe succeeded in bringing about a change of heart in his own court and in the arsenal of arguments to whose supplies it is chiefly due that the courts of the country are to-day so unanimous in accepting the common-sense view of the subject.” After defining the “opinion rule,” as applied to cases in which “expert evidence” was admissible, Judge Gaston says: “But judgment founded on actual observation of the capacity, disposition, temper, character, peculiarities of habit, form, features or handwriting of others is more than mere opinion. It approaches to knowledge, and is hnowledge, so far as the imperfection of human nature will permit knowledge of these things to be acquired; and the result thus acquired should h& communicated to the jury, because they have not had the opportunities of personal observation, and because in no other-way can they effectually have the benefit of the knowledge gained by the observation of others.” The record in this case illustrates the truth of the observation of the learned Judge. The question asked the insured is whether he has ever been intemperate in the use of liquors. This question is addressed, not to the opinion of the applicant, but to the fad, based upon the assumption that he has hnowledge of the fact in regard' to which he is asked. Eor the purpose of showing that the answer is not true, defendant introduces several witnesses and — 391 — asks them whether they have seen him “under the influence of alcoholic stimulants.” They are not confined to the inquiry whether they have seen him drink liquor; if so, how much, and at what intervals of time; -and then asked what he said, did, etc., so that the jury could draw their conclusions. The course of examination pursued was clearly admissible, because it is uniformly held competent to ask a witness whether a person was intoxicated — -under the influence of liquor — that being a fact known to the Avitness from observation of conduct, other facts, etc. Why may not the witness, after stating the basis of his knowledge, be asked Avith equal reason whether the applicant Avas intemperate % It is not easy to see Avhy one class of testimony is to he regarded as fact, while the other is opinion. If the question asked the insured had been, “IIaAre you been under the influence of liquor within one year ?” it would haAre been competent to ask a witness the direct question, “IIaAre you seen the insured under the influence of liquor within one year ?” Wherein is the distinction in principle between the tAVO questions ? To answer the first requires large data, knowledge or observation, extending over a longer period, hut is none the less a conclusion of fact drawn from personal knoAvledge and observation. That a Avitness may, having first stated knowledge of the essential facts, be asked whether a person Avas well or sick, angry or otherwise, and a multitude of ether questions of like character, is settled beyond contiwersy. Eor a collection of the cases illustrating the extent to which the courts of this country have gone in extending the principle upon which this class of testimony is admitted,-see Greenleaf Evidence (16th Ed.), 441.; 3 Wig-more Evidence, sec. 1938, note 2. Greenleaf says: “There is, therefore, no rule admitting opinions or inferences when made by one class of persons — experts—and excluding them when made by another class — laymen; but there is a rule excluding them whenever they are superfluous and admitting them whenever they are not.” After stating the rule, as — 392 — applied to persons having special skill or knowledge, be says: “Secondly, from persons who have no special skill, but have personally observed the matter in issue, and cannot adequately state or recite the data so fully and accurately as'to put the jury completely in the witness’ place and enable them equally well to draw the inference. The absurdities which disfigure the application of the rule come chiefly from a too illiberal interpretation of the latter notion — that is, it is frequently ruled that a personal observant can sufficiently state the observed data without adding his inference, although a just view of the situation would recognize that too much credit has been given to the witness’ power of narration, and that, in truth, it is impossible for the data to be stated.” The rule, with its limitations, underwent a most able and exhaustive discussion in the Supreme Court of New Hampshire, beginning with the dissenting opinion of Mr. Justice Doe in Boardman v. Woodman and State v. Pike, 49 N. H., 397, and the adoption of his opinion by Foster, O. J., in Hardy v. Merrell, as stated by Professor Wigmore. It is interesting to note, as said by Gxeenleaf (441), that “A more liberal tendency in this respect seems to be making its way in recent times.” All of the writers on the law of evidence agree “that the reports are overloaded with decisions of the sort that ought never to have been called for.” While it may be difficult to reconcile all of the cases in our reports, we think that, upon a careful examination of the peculiar facts in each case, there will be found a recognition of the principle announced in Clary v. Clary, supra. In McRae v. Malloy, 93 N. C., at page 154, Smith, C. J., says of this class of testimony: “The opinion is but a condensed and summary method of stating the result of personal observation and communications with the party.” In Insurance Co. v. Foley, 105 U. S., 350, 'the question and answer appear to have been admitted without objection. Field, J., in the opinion, says of the witnesses: “All of them testified from their observation of the conduct of the deceased, — 393 — and tbe jury would properly give weight to tbe testimony, not -according to tbe positiveness of tbe averments of tbe witnesses as to, tbeir knowledge, but, other considerations being equal, according to tbeir opportunities of observation of tbe deceased’s conduct, and tbe manner in which those opportunities bad been improved.” He further says: “Tbe question was as to tbe habits of tbe insured. His occasional use of intoxicating liquor did not render him a man of intemperate habits, nor would one exceptional case of excess justify tbe application of this character to him,” concluding, “And tbe testimony of witnesses who bad been intimate with him for years and knew bis general habits may well have satisfied tbe jury that, whatever excesses be may at times have committed, be was not habitually intemperate.” Mr. MeKelvey, after stating tbe general rule excluding opinion evidence, notes tbe exceptions to tbe rule, or, speaking more accurately, testimony which is sometimes erroneously supposed to come within it: “The matters referred to are those of which tbe mind acquires knowledge by tbe simultaneous action of several of tbe senses, so that an impression is produced on tbe mind which cannot be traced to any one fact produced by a single sense, but a statement of which is, nevertheless, a fact. A witness may say that a man appeared intoxicated, or angry, or pleased. In one sense tbe statement is a conclusion or opinion of tbe witness, but in a legal sense and within tbe meaning of tbe phrase ‘matter of fact,’ as used in tbe law of evidence, it is not an opinion, but is one of tbe class of things above mentioned, which are better regarded as matters of fact. The appearance of a man, bis actions, bis expression, bis conversation — a series of things — go to make up tbe mental picture in tbe mind of tbe witness which leads to a knowledge which is as certain and as much a matter of fact as if be testified, from evidence presented to bis eyes, to tbe color of a person’s hair or any other physical fact of like nature.” Evidence, 114; Mutual Life Insurance Co. v. Lathrop, 111 U. S., 612. — 394 — It would serve no good purpose to review the decisions made by this Court in the cases cited in defendant’s brief. We have examined them. Several may be distinguished, while it may be that in some the Court has fallen into the error of overmuch nicety of refinement. As said by Professor Thayer, in his admirable treatise, “The law of evidence is the creature of experience rather than logic.” See, also, Holmes Com. Law, 156. 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 — 395 — contends applies in tbis case. The question was not whether any witness had seen the insured under the influence of liquor, but, conceding that he was so seen, as testified, he was not thereby shown to be intemperate. While this Court has approved the instruction as given in Murray's case, 139 N. C., 540 — and we do not question the wisdom of giving it when the testimony presents the contention, for the purpose of aiding the jury — we should hesitate to find reversible error in the failure to give it when the other instructions, as in this case, point out the manner in which the testimony should be considered. An examination of the testimony fajls to disclose any substantial contradictory statements by the several witnesses. The real question was whether, conceding the truth of defendant’s testimony, the insured had ever been intemperate in the use of alcoholic liquor. This was fairly submitted to the jury, and they found against the contention of defendant. We find no reversible error. The judgment must be Affirmed.