Dersis v. Dersis

• Citation: 210 Ala. 308,98 So. 27
• Decision Date: 08 November 1923
• Docket Number: 6 Div. 828.
• Parties: DERSIS ET AL. v. DERSIS ET AL.
• Court: Supreme Court of Alabama

98 So. 27

210 Ala. 308

DERSIS ET AL. v. DERSIS ET AL.

6 Div. 828.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill of John Dersis, Eugenia Dersis, and an unnamed child of Cooley Dersis, by their next friend, Chas. Chafatinos, against Stella Dersis and Chris Jebeles. From a decree for complainants, respondents appeal. Affirmed.

F. D McArthur, of Birmingham, for appellants.

Vassar L. Allen, of Birmingham, for appellees.

BOULDIN J.

This is a bill in equity to contest the will of Cooley Dersis deceased. The sole issue is the testamentary capacity of the decedent.

Cooley Dersis received a stab wound in the head, inflicted with a knife. He was removed to a hospital and put under the care of a nurse, physician, and surgeon. He was there visited by relatives and friends. The wound deprived him of the power of speech from the beginning until his death. Inflammation developed, pus formed and exuded from the wound, fever appeared, and he died in the hospital about the fifteenth day. The will was executed some 14 hours before his death. It bequeathed and devised all property, real and personal, to Stella Dersis, wife of decedent, charged with the support and education of their children. There were two children of tender years, and one after-born child. The will was admitted to probate in the probate court without contest, and Chris Jebeles, one of the alternate executors named in the will qualified and took charge of the estate.

The bill is filed by the children of decedent, by next friend. A jury trial was had. Much testimony, expert and nonexpert, was presented on both sides as to the mental and physical condition of decedent from the time his wound was received until his death, and especially at and about the time the will was made. This appeal presents rulings on demurrer to the bill, on the admission of testimony and on instructions to the jury. The demurrer is for misjoindor of parties. The point made is that Chris Jebeles, one not interested personally in the estate, is made respondent as an individual, and not in his representative character as executor of the estate.

The style of the case shown in the caption names as respondents "Stella Dersis and Chris Jebeles," without more. The body of the bill shows that Jebeles had qualified as executor and taken charge of the estate. The prayer calls for process "making the said Stella Dersis and Chris Jebeles, the latter as executor of the estate of Cooley Dersis, deceased, parties respondent hereto," etc.

The suit, considering the whole bill, was against Jebeles in his representative character. The demurrer was properly overruled. Alabama City G. & A. Ry. Co. v. Heald, 178 Ala. 636, Lucas v. Pittman,

94 Ala. 616, 10 So. 603; Bryant v. Southern Ry. Co., 137 Ala. 488, 34 So. 562.

Complainants' witness George Vratos testified that he carried Cooley Dersis to the hospital when he was wounded, and stayed all night with him. Witness was then asked the following question: "Was he or not conscious during the night?" It is insisted that it was error to admit the opinion of a nonexpert witness that the wounded man was not conscious. There is no need here to discuss at length the history and the reasons for the rules now obtaining in the admission of the opinions of nonexpert witnesses touching sanity or insanity. The early cases in Alabama refused such testimony, except from subscribing witnesses to a will. State v. Brinyea, 5 Ala. 243; McCurry v. Hooper, 12 Ala. 827, 46 Am. Dec. 280. Beginning with the leading case of Norris v. State, 16 Ala. 777, the rule has grown here, as in other states generally, to be briefly this: A witness shown to have such acquaintance, association, observation, or dealings with the person in question as to enable him to form an intelligent opinion may give his opinion whether such person is of sound or unsound mind. If his opinion is that the person is of unsound mind, it must be accompanied with such statement of the words, actions, appearance, or other indicia as the witness may reasonably give, showing the basis of his opinion. Florey's Ex'rs v. Florey, 24 Ala. 241; Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902; 4 Wigmore on Evidence (2d Ed.) §§ 1933, 1934, 1938, note 1. An interesting discussion of the entire subject is found in Lawson on Expert and Opinion Evidence, rule 46, subrule 4, pp. 532 to 556.

The evidence here called for does not, strictly speaking, belong to the class above discussed. It relates to the mental state or condition induced by the sudden shock of a wound on the head. It goes without saying that it would be difficult, in many cases, if not impossible, for the ordinary observer to say at what moment a wounded or sick man passes the shadowy borderline between the conscious and the unconscious. Still, is there anything more perceptible than the difference between an active, alert mind, and one weakened, benumbed, or beclouded by great physical shock or disease? Intelligent mental action is commonly communicated by speech; but that is not the only way. Millions of ordinary people derive daily entertainment from reading the thoughts and emotions of men and women shown by mirrored facial expression, pose, and movement. All of us can read, not only the signs of mental life, but, generally, the primary emotions of love, joy, anger, hate, fear, or distress, as written on the human face; but who of us could give an intelligent description of such mental and emotional action? We see no reason why an arbitrary rule should obtain forbidding the giving of one's judgment upon matters upon which men do form and express intelligent judgment in daily intercourse. To do so is to shut the door to means of getting the truth in the court house which are recognized everywhere else in human affairs.

We have often admitted evidence of generalizations as a statement of a collective fact. Many such are, in last analysis, the judgment expressed on related facts from which the ultimate fact, derived by the reasoning process, becomes manifest. It is generalized knowledge. Proper limitations and safeguards defined by law should be sternly applied. An eye to the best evidence should be open. Cross-examination to test out the foundation and accuracy of opinions is a fundamental safeguard. Opinions should never be substituted for obtainable facts capable of expression in words. The jury, and not the witness, must try the issue. The opinion should not be remote, speculative, or illogical. It must not be a compound of fact and law. A certain discretion is rightly vested in the trial courts in directing the search for the truth by this class of evidence, and their action should not be disturbed unless it is apparent some right of a party has been invaded or suppressed. We think a man sitting up all night with a sick man, or one grieviously wounded in the head, may form an opinion whether he is conscious or unconscious, which may be given to the jury for what it is worth.

Respondents' witness Gus Lavas, on direct examination, was asked: "Was he conscious all of that time; did he know what he was doing?" The witness had just detailed the occurrences attending the execution of the will. "That time" in the question, related to the time the will was made. The making of a will was "what he was doing" within the question asked. It is a double question. Its propriety is determined by the whole. An affirmative answer would have implied the presence of all those mental actions which constitute the elements of a valid will. It called for a general opinion on the whole issue being tried by the jury. It was properly rejected.

There was no error in asking a witness: "What condition did you find the sick man in then?" It is difficult to frame a question less leading, but better intended to draw out those physical and other appearances proper for the jury. If the answer went out of bounds, a motion to exclude was the property remedy.

Likewise it was permissible to show by a nonexpert the change in the physical appearance of the wound as the end approached. The only evidence on the point presented by this assignment of error was to the effect that the wound was exuding pus and the face became swollen.

Complainants' witness Dr. Edger Collins, after qualifying as an expert witness, testified to an examination of Cooley Dersis a few hours before the will was made. He was then asked the...