Clark v. Clark

• Decision Date: 28 May 1897
• Parties: CLARK v. CLARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 523

47 N.E. 510

CLARK v. CLARK.

Supreme Judicial Court of Massachusetts, Worcester.

May 28, 1897

The plaintiff's attorney called as a witness one Mrs. Gleason, a sister of the plaintiff, who had known her intimately all her life, and who had lived with the plaintiff during the two years preceding the date of the trial. The plaintiff's attorney, expecting to show, and being prepared to show, the mental condition of the plaintiff at the time of the execution of the deed, as compared with her mental condition when appearing in court, and that there had been but slight change in said condition, asked the witness the following question: "Please state whether your sister [the plaintiff] has failed or has not failed in her mental capacity during the past five years." This question was objected to by the defendant, and excluded by the court, and the plaintiff excepted.

COUNSEL

Herbert Parker and J.E. Beaman, for plaintiff.

Thomas G. Kent and Geo. T. Dewey, for defendant.

OPINION

LATHROP J.

We have no desire in this case to depart from the rule early established, and often since recognized, that a witness who does not come within one of certain recognized classes cannot give an opinion as to the soundness of mind of a person. In Poole v. Richardson, 3 Mass. 330, subscribing witnesses were allowed to testify as to the judgment they formed of the soundness of the testator's mind at the time of executing the will. See, also, Williams v Spencer, 150 Mass. 346, 23 N.E. 105. "Other witnesses were allowed to testify to the appearance of the testator, and to any particular facts, from which the state of his mind might be inferred, but not to testify merely their opinion or judgment." In Hathorn v. King, 8 Mass. 371, attending physicians were first allowed to give their opinion. See, also, Baxter v. Abbott, 9 Gray, 71; Hastings v. Rider, 99 Mass. 622. And in Lewis v. Mason, 109 Mass. 169, the opinion of a person who had been the family physician some years before was held to be admissible, although he had not attended the testator for some years. Experts in mental diseases are also allowed to give an opinion. May v. Bradlee, 127 Mass. 414, 421. These are well-recognized exceptions to the general rule, but the rule itself is well established. Thus in Com. v. Wilson, 1 Gray, 337, 339 (a case of homicide in which the defense was insanity), the defendant's counsel was not allowed to ask a witness, who had testified to the appearance and conversation of the defendant at certain interviews he had had with the defendant before the homicide, what opinion of the prisoner's mental condition he formed at the time. In Com. v Rich, 14 Gray, 335, a physician, not an expert in mental diseases, was not allowed to give his opinion on a hypothetical case as to the sanity or insanity of the defendant. Nor was he allowed, although he knew the defendant, to give his opinion as to whether he would be competent to apply the rules of right and wrong to any state of circumstances concerning which he was under high excitement, or in reference to which he was under the influence of an uncontrollable impulse. In Cowles v. Merchants, 140 Mass. 377, 5 N.E. 288, this question was asked: "If you have an opinion as to the mental condition of Erastus Cowles on August 28, 1894, founded upon facts and circumstances within your personal knowledge, state what that opinion is, and the facts and circumstances upon which it is founded." This was held rightly excluded. In Smith v. Smith, 157 Mass. 389, 32 N.E. 348, the general rule was followed, and this question to a witness was held inadmissible: "Whether, from the general appearance of the testator, he considered him capable of making a contract, or of transacting important business." See, also, Hubbell v. Bissell, 2 Allen, 196; Com. v. Fairbanks, 2 Allen, 511; Ashland v. Marlborough, 99 Mass. 47; May v. Bradlee, 127 Mass. 414, 421; Ellis v. Ellis, 133 Mass. 469; McConnell v. Wildes, 153 Mass. 490, 26 N.E. 1114.

It has however, often been decided that a witness, although he does not come within one of the classes allowed to give an opinion, may testify to facts which are matters of common observation. Thus, in Com. v. Dorsey, 103 Mass. 412 (a case of homicide), the testimony of a witness, not an expert, was held admissible, that hairs on a club appeared to be human hairs, and resembled the hairs of the person murdered. So, in Parker v. Steamboat Co., 109 Mass. 449 (an action for personal injuries), the daughter of the plaintiff was allowed to testify: "The plaintiff is decidedly worse than she was two months after the accident. She is not able to do as much work as before." In Barker v. Comins, 110 Mass. 477 (a will case), these questions were allowed to be asked: "Did you notice any change in his intelligence or understanding?" "Did you notice any want of coherence in his remarks?" It was said by Mr. Justice Gray, in delivering the opinion of the court: "The questions to the witnesses produced at the trial were rightly admitted. They did not call for the expression of an opinion upon the question whether the testator was of sound or unsound mind, which the witnesses, not being either physicians or attesting witnesses, would not be competent to give. Hastings v. Rider, 99 Mass. 622, 625. The question whether there was an apparent change in a man's intelligence or understanding, or a want of coherence in his remarks, is a matter not of opinion, but of fact, as to which any witness who has had opportunity to observe may testify, in order to put before the court or jury the acts and conduct from which the degree of his mental capacity may be inferred." 110 Mass. 487. In Nash v. Hunt, 116 Mass. 237, 245, a witness...