Moffitt v. . Smith

69 S.E. 224, 153 N.C. 292, 1910 N.C. LEXIS 70

• Court: Supreme Court of North Carolina
• Decided: October 26, 1910
• Status: Published

Opinion

Clark, C. J.

On the trial of the caveat to the will, it appeared tbat tbe testatrix bad been stricken witb paralysis. A non-expert witness testified tbat be tbougbt sbe bad tbe capacity to make a will. He was then allowed, over defendant’s exception, to testify as to wbat be bad observed as to tbe menta\ condition of tbe witness’ father wben also suffering for many years, from a similar attack. Tbis evidence was admitted “to sbow tbat tbe witness bad experience in observing persons wbo bad. been paralyzed, and it was explained to tbe jury tbat it could not, be considered for any other -purpose.”

In Clary v. Clary, 24 N. C., 78, it is beld that any one, though not an expert, who has had an opportunity of knowing and observing a person whose sanity is impeached may give his opinion as to the sanity or insanity of such person. Certainly to give the jury information of the fact that the witness has had opportunity to observe the mental condition of another person, stricken likewise by paralysis, cannot be prejudicial. The jury were instructed that the witness was testifying, not as an expert, but from his own observation, of the mental condition of the testatrix, and his observation of the condition of his father was merely to aid the jury in considering the weight to be given to his testimony. This was competent as “opinion evidence”' — • as distinguished from “expert evidence.” Lumber Co. v. R. R., 151 N. C., 221, and cases there cited.

After full and careful consideration of the other exceptions we do not find that they require discussion. The tenth exception, that the court refused the caveators the right to open and conclude, was properly abandoned in this Court. The ruling as to the right to open and conclude is not appealable in any case in which the defendant has introduced evidence. Rule 6, Superior Court, 140 N. C., 679.

No error.