Graves v. Pemberton

• Decision Date: 12 November 1891
• Citation: 29 N.E. 177,3 Ind.App. 71
• Parties: GRAVES v. PEMBERTON.
• Court: Indiana Appellate Court

3 Ind.App. 71

29 N.E. 177

GRAVES

v.PEMBERTON.

Appellate Court of Indiana.

Nov. 12, 1891.

Appeal from circuit court, Wayne county; D. W. COMSTOCK, Judge.

Action by Mary A. Pemberton against Newell Graves, administrator of Howell Graves, deceased, for work and labor performed and provisions furnished. Judgment for plaintiff. Defendant appeals. Affirmed.

J. W. Henderson and Fox & Robbins, for appellant. H. W. Johnson and Perry J. Freeman for appellee.

New, C. J.

This is a claim by the appellee against the estate of Howell Graves, deceased, for work and labor performed by the appellee for the decedent in his lifetime, at his request, and for groceries and provisions furnished by the appellee to the decedent at his request. The work and labor sued for begins with October 1, 1880, and ends with the year 1889, the total charges therefor being $6,396. The groceries and provisions begin with February, 1885, and end with September 1, 1889, the total thereof being $341.21, making in all the sum of $6,737.21. This amount is credited with clothing furnished by the decedent to the appellee and her children, and school-books furnished to said children by the decedent, $125; and a further credit of board furnished by the decedent to said children, $400; leaving a balance due the appellee, as alleged in her claim, of $6,212.21. There was a trial by jury, with verdict in favor of the appellee for $1,985. The appellant assigns as error the overruling by the court of his motion for a new trial. Of the reasons assigned for a new trial, counsel for the appellant in their brief discuss only those which relate to hypothetical questions numbered 1, 2, and 3, which the court permitted to be propounded and answered over the objection of the a appellant, and the refusal of the court to give certain instructions asked by the appellant concerning the statute of limitations. The hypothetical questions propounded by the appellee, and objected to by the appellant, related to the value of the services alleged in the appellee's claim to have been performed by her for the appellant, and which, as the record shows, she was trying to establish by witnesses called in her behalf. We are cited by counsel for the appellant to authorities declaring when opinion testimony is and is not admissible. The rule as found often to be stated is that opinions from experts may be received, where the facts cannot be made palpable to the jurors, so that their means of forming opinions are practically equal to those of the witnesses, but that such opinions cannot be received in cases where the jury are equally capable with the witnesses of forming an opinion from the facts stated. Rog. Exp. Test. (2d Ed.) 13-25. The supreme court of this state has said: “We think it may be stated generally that the opinion of a witness is not admissible in evidence, when the facts upon which it is founded can be stated to and intelligently comprehended by the court or jury trying the case; and where, from such facts, men in general are capable of drawing reasonably correct conclusions.” Railroad Co. v. Hale, 93 Ind. 79. See, also, Rog. Exp. Test. 19; Muldowney v. Railroad Co., 36 Iowa, 472,Taylor v. Town of Munroe, 43 Conn. 36;Ferguson v. Hubbell, 97 N. Y. 507. Upon questions of value, however, the rule is well settled that a non-professional or ordinary witness may testify by opinion. Rog. Exp. Test. 12, 352-378; 1 Greenl. Ev. § 440, and notes; Railroad Co. v. Crawford, 100 Ind. 550;Yost v. Conroy, 92 Ind. 464;Chamness v. Chamness, 53 Ind. 301. And, for...