Glover v. City of Birmingham, 6 Div. 248

• Citation: 255 Ala. 596,52 So.2d 521
• Decision Date: 10 May 1951
• Docket Number: 6 Div. 248
• Parties: GLOVER v. CITY OF BIRMINGHAM.
• Court: Supreme Court of Alabama

Page 521

52 So.2d 521

255 Ala. 596

GLOVER v. CITY OF BIRMINGHAM.

6 Div. 248.

Supreme Court of Alabama.

May 10, 1951.

Gibson & Hewitt, Birmingham, for petitioner.

Chas. H. Brown, Birmingham, opposed.

FOSTER, Justice.

On a charge of violating a city ordinance (No. 600), prohibiting the possession of certain papers customarily or usually used in the operation of a lottery, the city was permitted to prove by one who qualified as an expert that certain papers were suitable for or customarily used in the operation of a lottery.

The Court of Appeals in the opinion here under review held such testimony was permissible. Petitioner her finds fault with that ruling upon the basis of our holding that in certain cases it is not permissible for a witness, although an expert, to testify as to his opinion when the matter of his opinion is an ingredient of the ultimate subject sought to be found by the jury. Petitioner cites the case of Colvin v. State, 247 Ala. 55, 22 So.2d 548, wherein it was held the witness should not be permitted to testify a fire was of incendiary origin, since that was the ultimate fact for the determination of the jury and implied a conclusion that the fire was intentionally set. Whereas the witness could testify that, in his opinion, there was gasoline or kerosene at the point of the fire. Petitioner also cites the case of Louisville and Nashville R. R. Co. v. Manning, Ala.Sup., 50 So.2d 153, wherein this Court observed that a witness may state his judgment where the facts were collective and a judgment was based upon his knowledge of the constituent elements, but that he could not usurp the functions of the jury by stating his conclusion as to the very fact in issue between the parties.

In the case of Crotwell v. Cowan, 236 Ala. 578, 184 So. 195, 200, cited by petitioner, a witness was asked to give his judgment as to what would be a reasonable rate of speed 'to come off of that hill'. It was said that the question asked for an opinion in respect to a matter which the jury could understand as well as the witness. We may add to the foregoing authorities one recently announced by this Court of Low v. Low, Ala.Sup., 52 So.2d 218. MS, in which we held that a complainant who sought to have a deed set aside because of want of delivery could not testify what his intention was in disposing of the deed since that was a matter of opinion and was for the determination of the court trying the facts of the case.

A witness may sometimes give evidence as to that which is the ultimate fact for the decision of the court, as where his evidence is not merely a matter of opinion, but is in the nature of a collection of inherent elements which enter into the question and are known to the witness. It is then immaterial whether it is of the ultimate issue or some incidental issue on the trial of the case. Brandon v. Progress Distilling Co., 167 Ala. 365, 52 So. 640; 32 Corpus Juris Secundum, Evidence, § 446, p. 75. Where the trier of the facts must draw an inference from circumstances as the ultimate finding to be made, a witness cannot give his own inference or conclusion from those facts, but he must give the circumstances and let the jury draw the inference. Those circumstances may be in the nature of a shorthand rendering or a collection of them, rather than always repeating every feature which enters into it. This was emphasized in the case of Louisville and Nashville R. R. Co. v. Manning, supra. It is illustrated in the case of Atlantic Coast Line R. Co. v. Enterprise Cotton Co., 199 Ala. 57, 74 So. 232, in which this Court held that a qualified witness was competent to testify whether a certain railroad car which had come under his observation was properly loaded. In holding...