Clarke v. Irwin
| Decision Date | 08 January 1902 |
| Docket Number | 9,849 |
| Citation | 88 N.W. 783,63 Neb. 539 |
| Parties | HENRY T. CLARKE v. LEMUEL B. IRWIN ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Sarpy county. Tried below before POWELL, J. Reversed.
REVERSED.
Wright & Thomas, J. W. Carr and H. T. Clarke, Jr. for plaintiff in error.
Hall & McCulloch and George W. Covell, contra.
KIRKPATRICK C. HASTINGS and DAY, CC. concur.
This is an action brought in the district court for Sarpy county by defendants in error against plaintiff in error on the 18th day of June, 1894, to recover possession of certain lands, together with rents and profits. The petition pleaded that defendants in error were the owners and entitled to the immediate possession of the lands, describing them that plaintiff in error wrongfully withheld possession of the premises, and kept defendants in error out of possession; that they were entitled to rents and profits in an amount set out, and prayed judgment for possession and for damages. The answer of plaintiff in error, so far as material to this inquiry, is that he had been in the open, notorious and exclusive adverse possession of the premises described in the petition for a period of ten years and more, to wit, for about twenty-six years. To this answer a reply was filed, pleading that at all times set out in the answer, and long prior thereto, John Irwin, the ancestor of defendants in error, was insane and non compos mentis, and that on the 20th day of October, 1893, he died insane. Trial was had to a jury, which resulted in a verdict and judgment for defendants in error. Many assignments of error are made, but they will be considered under three general divisions, as follows: First, errors of the court in the admission and exclusion of evidence; second, errors of the court in the giving and refusing instructions; third, that the evidence is not sufficient to sustain the verdict. These assignments, so far as necessary to a determination of the case, will be considered in the order named.
It appears from the record that plaintiff in error called in a large number of non-expert witnesses, who had known Irwin for many years, some of them having been his neighbors, and who had resided within a few blocks of him for ten or fifteen years, and sought by the evidence of these witnesses to show that Irwin was not insane. This evidence was excluded by the trial court. It is not necessary to a proper determination of this case to examine the evidence of these witnesses in detail. One Wilson McFarron was among the witnesses called. He testified that he had known Irwin quite intimately for many years, had resided in the same town with him for more than three years, and had seen and talked with him very frequently, and during his acquaintance had several business transactions with him. He had purchased some land warrants from Irwin, and had borrowed one or more, either from Irwin or his agent, for the purpose of locating land. He had purchased an eighty of 160 acres of land upon which Irwin held a mortgage. The land had timber upon it, and the witness, after trying in vain to get Irwin to make some arrangements by which the other eighty could be first sold, proceeded to cut the timber. Irwin notified him to stop cutting, but he persisted until the day before the land was sold. It seems to be a well-settled rule that non-expert witnesses who show a personal acquaintance with the person alleged to be insane, extending over a considerable period of time, and are shown to have a sufficient acquaintance to be able to form an opinion, after detailing to the jury the facts and circumstances upon which such opinion is based, are permitted to testify whether in their opinion such person is sane or insane. The established doctrine is that if the witness has sufficient opportunity for observation to enable him to form an opinion upon the question of the sanity of the person, then he is a competent witness, and may be permitted to testify to such opinion. This rule seems based upon sound reason. In fact, if the rule were otherwise, grievous hardship and injustice might frequently result. Cases might, and frequently do, arise in which medical experts differ as to whether the person in question is sane or otherwise. In such cases, in the absence of a rule permitting non-expert witnesses to testify, the jury might not be able correctly to determine whether the person was or was not insane. The qualification of the witness to give his opinion of the sanity of a person is a question resting very largely in the sound discretion of the trial court. There is no doubt that, had the witness McFarron given in detail all the facts and circumstances of his acquaintance with Irwin, the different times he had seen him, how he looked, talked and acted, and how he did business, his testimony would have had more probative force, and would have been of more value to the jury than as offered. But this objection goes rather to the weight than to the competency of the evidence. The weight to be given testimony is exclusively for the jury, taking into consideration the credibility and intelligence of the witness, and his opportunity for observation. Hardy v. Merrill, 56 N.H. 227, 241; Schlencker v. State, 9 Neb. 241, 1 N.W. 857; Polin v. State, 14 Neb. 540, 546, 16 N.W. 898; Burgo v. State, 26 Neb. 639, 42 N.W. 701; Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612, 619, 28 L.Ed. 536, 4 S.Ct. 533; State v. Lewis, 20 Nev. 333, 22 P. 241. This evidence should have been received, and its exclusion was error.
Plaintiff in error offered in evidence a deed executed by John Irwin, as attorney in fact for Samuel Irwin, dated and acknowledged September 23, 1878. The purpose of this evidence seems to have been to show that John Irwin was sane at the date of its execution. George W. Covell, who signed the deed as a witness, and also took the acknowledgment of Irwin, was called and testified. After being identified as the Covell who took the acknowledgment, he was examined by defendants in error, and, over objections of plaintiff in error, was permitted to testify as follows:
Q. State the circumstances of that. [The execution of the deed.]
A. Mr. Irwin was brought to my office by Mr. Stevenson, to execute this deed.
Q. I am speaking now of the Metzler deed.
A. That is Lewis Metzler. * * *
Q. He was brought to you by Metzler?
A. Metzler and Stevenson. Metzler was the mortgagee in the deed, and Stevenson was the attorney who had charge of matters for Samuel Irwin, and the deed was executed and acknowledged before me at that time. I had been doing business for Mr. Metzler prior to this time, and sold him quite an amount of land; and Mr. Metzler asked me at the time [Here witness was interrupted by an objection.] And Mr. Metzler asked me at that time whether or not a deed made by John Irwin as attorney in fact for Samuel Irwin would convey him anything, and I said, "Nothing except on the face of the record."
After an objection on the ground that the giving of this conversation was incompetent and immaterial, and a motion to strike it out overruled, the witness continued:
"I further stated to him that Samuel Irwin was insane, and John Irwin was insane, and that neither one of them had any capacity to make any conveyance."
Plaintiff in error renewed his motion to strike this testimony as incompetent, which was overruled, to which exceptions were taken. There can be little doubt that this testimony was inadmissible, for the reason that it is hearsay. It purports to be of a conversation had between the witnesses, when not under oath, and one of the parties to the deed. That such testimony was inadmissible, would seem to be elementary, and require citation of but little authority. In the case of Harrison v. Rowan, 3 Wash. C. C. 580, 11 F. Cas. 658, it is said: "A witness may depose as to what he thought of the testator's sanity, at or about the time the will was made; but not as to what the witness had declared upon the subject to others."
Plaintiff in error complains of various instructions given by the court upon its own motion. In order properly to understand the questions to be determined in this case, it will be necessary to consider instructions Nos. 6, 7, 8, 9 and 10, which comprise all the instructions given in the case, except instructions concerning the issues, certain admitted facts and the manner of arriving at and returning a sealed verdict, about which there is no complaint. The instructions given are as follows:
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