Harpending v. Shoemaker

37 Barb. 270, 1862 N.Y. App. Div. LEXIS 100

• Court: New York Supreme Court
• Decided: September 1, 1862
• Status: Published

Opinion

By the Court,

Johnson, J.

On the trial before the justice, this question was put to the witness : “ How much less buckwheat was there, than there would have been if the same had been properly threshed ?” The witness had already stated that there was 126 bushels after it was threshed, and that he had examined the straw ; that he thought it was not threshed clean; that there was a good deal of buckwheat left in it; th&t some of it looked as though it had not been threshed at all, and that some of it was threshed clean. He had also stated that he had owned a farm and had been a farmer, but was then a merchant. The question was objected to upon two grounds: 1. That it calls for the opinion of the witness. 2. That it does not appear that the witness is competent to give an opinion. The objection was sustained by the justice, and the evidence excluded, but upon which, ground does not appear. The county court sustained the ruling of the justice, and the question is presented to us for review, upon appeal.

In order to examine the question presented, intelligently, it is necessary, in the first place, to see what was the issue between the parties, to which the evidence proposed was addressed, and what it was that .the plaintiff was seeking to establish, by the answer to the question propounded.

The issue-on this branch of the case was, whether the defendant, who was a tenant of the plaintiff, in securing and threshing the crops, had performed the labor in such a negligent, unskillful and unworkmanlike manner that such crops, or a considerable portion thereof, had been thereby lost to the plaintiff. The precise object of the inquiry was to ascertain how much, or what proportion, of the grain was left upon the straw after the threshing; and the first question presented is, whether the opinions of witnesses, properly qualified to speak upon the subject, are competent evidence to aid in establishing such a fact.

The standard works upon the law of evidence do not furnish us any light upon this question, and the reported cases do not seem to have established apy clear and well defined rule upon the subject of the admissibility of evidence resting in the judgment or opinion of an informed and competent witness, in matters of common experience and observation, having little, if any, relation to questions of science and skilled experts. Indeed the cases appear to have created confusion and uncertainty, instead of establishing order and certainty, uponthis subject. I shall cite only a few of them. (DeWitt v. Barly and Schoonmaker, 17 N. Y. Rep. 340. S. C., 5 Seld. 371. Clark v. Baird, Id. 183. Morehouse v. Mathews, 2 Comst. 514. People v. Eastwood, 14 N. Y. Rep. 562. Rock, and Syr. R. R. Co. v. Budlong, 6 How. Pr. R. 467. S. C., 10 id. 289. Cook v. Brockway, 21 Barb. 331. Nellis v. McCarn, 35 id. 115.) The books are full of cases upon this subject; but enough have been cited to show that the rule is not yet fixed upon any well defined principle: In some of the cases it is said that- opinions are not competent in any 'case, except in those cases where experts are permitted to state opinions. This was said in Cook v. Brockway, (supra,) which the county court held to he decisive of the question here. On the other hand it is said,- in Nellis v. MeOarn, (supra,) that witnesses may give their opinions upon questions of value, and as to the amount of damages a party has sustained, where the damage consists -in an injury to, or destruction of, property. It is well settled that witnesses who have sufficient knowledge upon the subject, derived from their own experience and observation, may give their opinions in evidence, upon questions of the value of property, whenever such a question is in issue, and proof is necessary on the subject. This has long been established. It is also now settled by our court of last resort, that an unprofessional witness may give an opinion in evidence as to the mental capacity of a person, founded upon personal observation of his appearance and conduct. (De Witt v. Barly and Schoonmaker, (supra.) Also, as to whether a person is intoxicated, or sober. (People v. Eastwood, supra.) Much of the difficulty, I think, upon many of these questions, has arisen from not discriminating between mere opinion, founded and expressed upon some hypothesis stated, or statement of facts related by another, and knowledge of a witness, which is in part opinion or judgment, and in part observation and experience, in regard to the very matter upon which he is called to testify. It is every day’s evidence in the trial of causes at the circuit, that witnesses are called upon to state their judgment, or opinion, upon questions of value, of quantity, of size, of distance, of time, and the like, where there has been no test applied by measurement or otherwise. And this species of evidence has been found absolutely necessary to even a tolerable administration of justice. Indeed to refuse it would in very many cases operate as a complete denial of justice. ¡

A brief reference to a very few of the most common cases will not be inappropriate in the discussion of this question. In actions of trespass, to recover for the destruction of crops, partial or total, by animals or otherwise, witnesses acquainted with the crop, and the average yield of such crops, after seeing the extent of the destruction, are allowed to state their judgment, or opinion, as to the-quantity of grain destroyed. In actions of tort for taking an unmeasured quantity of grain, or an unmeasured portion, from a ■ quantity measured, witnesses who had seen the grain before, and the portion, if any, left afterwards, are allowed to give their opinion or judgment as to the quantity taken. In actions of assault and battery, where the instrument used is not produced, witnesses who saw it are uniformly allowed to'state their judgment, or opinion, as to the length and size of it, and the distance they were, at the time of the affray, from the spot where it took place, the time when, &c. Many more instances might be mentioned, equally in point, in which the rule would scarcely be diputed by any one; where it is perfectly obvious that the knowledge in great part rests in the judgment or opinion of the witness, founded upon his observation. It is his conclusion of fact, from what he saw or experienced. That this is the common laxo of evidence upon trials, and must have been always, will, I am confident, be confirmed by the assent of all- judges and lawyers of much experience in trials at nisi prius. A question of this character, precisely, was put to the same witness upon, the trial in this case. The crop, it seems, had been injured by the frost, and the witness was asked what proportion of the crop had been destroyed by the frost. He answered that, in his judgment, one half had been thus destroyed. The question was objected to, but the answer was allowed. That it was properly allowed, can, I think, admit of no doubt. _ The fact could scarcely be proved to the apprehension of a jury in any other way. Ho description in language could have brought the facts before their minds in such a manner as would.enable them to form any intelligent judgment upon it. But the question rejected was precisely of the same character. It sought to ascertain the proportion or quantity of the grain left upon the straw, after threshing. How could this he described to a jury, so as to enable them to decide, without the conclusion of fact of the witness, founded upon his examination. The question was not framed with much 'skill, but the object of it is entirely apparent. It did not call for a mere opinion, but for the knowledge of the witness, of an existing fact; knowledge inferior in degree, however, to that which is absolute and certain. But it was his knowledge, nevertheless, derived partly from observation and partly from opinion or judgment. And this knowledge must of necessity have existed in the mind of the witness, with far greater clearness and certainty, than it could have been communicated to the minds of the jury by any statement he might have made of what he saw merely, however clear and lucid such statement might have been. If witnesses were to be permitted to state to a jury those facts only, of which they have absolute and certain knowledge, not only the range of inquiry, .but the province of remedial justice, would be very materially contracted.

It is quite obvious that the decision in Nellis v. McCarn, and that in Cook v. Brockway, cannot both stand as law, as they are directly opposed to each other, in principle. In each case the action was to recover for the loss or destruction of property, and in one, the opinion of the witness making the examination, as to the quantity lost, or destroyed, was allowed, and in the other held inadmissible. Suppose in Cook v. Brockway the action had been in the nature, of trover, for the conversion of the chaff after the threshing and cleaning, or for the conversion of the wheat and chaff together, after the threshing and before cleaning, when no measurement had been, or could well have been, made. Is it possible in such a case, that a witness who had made a proper examination, and was competent to form an intelligent judgment, would not be allowed to give such judgment or opinion as to the quantity of wheat converted ? I think not. And yet the opinion of the court in that case seems to hold that it should be excluded. The evidence was not held to have be’en improperly received on the ground that the witness had not examined sufficiently, or was not qualified to form a correct opinion.

In this case, it cannot be pretended that the witness was not qualified, by experience and examination, to form a reasonably correct judgment. I am clearly of the opinion, therefore, that the answer to the question was improperly excluded.

The plaintiff should also have been allowed to prove the conversion of his hay and corn by the defendant, and the receipt of the money therefor. The objection was that no such cause of action was stated. in the complaint; and upon this objection the evidence was excluded. The complaint contained a count for indebtedness from .the defendant to the plaintiff, for hay, corn and other property sold and delivered by the plaintiff to the defendant at his request. Also on account of money had and received by the defendant to the plaintiff’s use. The plaintiff offered to prove the tortious taking, and the sale of the property, and the receipt of the money, and to waive the tort, and go for the money had and received, or for the value of the hay and the corn, as for goods sold and delivered. Whether the owner, whose property has been tortiously taken, can waive the tort, and bring his action as for property sold and delivered, while the wrongdoer still keeps the property in his possession, the cases do not agree. But they all agree that if the wrongdoer sell the property, and receive the money therefor, an action lies at the suit of the owner, for money had and received, and that such an action is a waiver of the tort. (Putnam v. Wise, 1 Hill, 234, 240, note a. Schroeppel v. Corning, 2 Seld. 112. Roth v. Palmer, 27 Barb. 652.) In such an action it was never necessary to state in the complaint how, or under what circumstances, the money came to the defendant’s hands. That is mere matter of evidence. The receipt of the money to the plaintiff’s use is the fact which constitutes the cause of action. (O’Maley v. Reese, 6 Barb. 458. Adams v. Holley, 12 How. Pr. R. 326. Allen v. Patterson, 3 Seld 476.)

[Monroe General Term, September 1, 1862.

The objection to the question whether the witness held the grain as his own, or as a pledge, was properly overruled. Whether he held it under one claim or the other, was a fact which he might testify to directly.

I think the objection to the question as to how much corn there would have been if it had been well taken care of, was properly sustained. The question related to the want of care in the cultivation of the crop. The answer could have been, at best, but mere speculation. If the witness had expressed his opinion on the subject, it would have been a speculative opinion merely, based upon no knowledge whatever, of any existing fact. Here speculative opinions are not competent evidence, unless indeed in the case of experts. In respect to unprofessional persons, opinions, to be competent evidence, must be such as to constitute, in some degree, knowledge of existing facts.

The judgment of the county court and that of the justice must be reversed.

Johnson, Welles and J. C. Smith, Justices.]