Herring v. Davis

• Citation: 273 P. 757,47 Idaho 211
• Decision Date: 08 January 1929
• Docket Number: 5129
• Parties: CARRIE E. HERRING, as Administratrix of the Estate of MARY KATHERINE HERRING, Appellant, v. ROBERT F. DAVIS, Respondent
• Court: Idaho Supreme Court

273 P. 757

47 Idaho 211

CARRIE E. HERRING, as Administratrix of the Estate of MARY KATHERINE HERRING, Appellant, v. ROBERT F. DAVIS, Respondent

No. 5129

Supreme Court of Idaho

January 8, 1929

PLEADING-AMENDMENTS-ERROR-WAIVER-APPEAL AND ERROR-ADMISSION OF EVIDENCE - OBJECTION - PRESUMPTION - EVIDENCE - MENTAL CONDITION-COMPETENCY OF NONEXPERT WITNESSES-REJECTION OF EVIDENCE-OFFER OF PROOF.

1. Any error committed by trial court in permitting defendant, at conclusion of plaintiff's case, to amend by filing a verified answer in place of his unverified answer, was waived, where plaintiff, on court offering to continue the case if plaintiff so desired, chose to proceed, no prejudice to plaintiff being shown from allowance of amendment.

2. Nonexperts may testify as to the mental condition of a person.

3. Where evidence is received subject to future exclusion, it will be presumed, in absence of any showing to the contrary to have been considered.

4. In suit to have deed set aside on ground of grantor's mental incompetency, testimony that witness had heard that grantor's son was in an insane asylum held inadmissible as hearsay.

5. Exclusion of evidence held not error, in absence of offer to prove what was expected to be established thereby.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action to have deed set aside. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

Frank F. Kimble, for Appellant.

It is error to permit amendment of answer as of course. (Farmers & Mechanics' Bank v. Gallaher Investment Co., 43 Idaho 496, 253 P. 383.)

The trial court erred in permitting amendment of complaint during trial. (C. S., secs. 6703, 6726, as amended by Sess. Laws 1921, chap. 235; Lorang v. Randall, 27 Idaho 259 148 P. 468; Hirons v. Clare, 38 Cal.App. 608, 177 P 291; Craven v. Bos, 38 Idaho 722, 225 P. 136.)

Admission of opinion of witnesses on mental capacity, unsupported by facts, is error. (Holland v. Zollner, 102 Cal. 633, 36 P. 930, 37 P. 231; Lassas v. McCarthy, 47 Ore. 474, 84 P. 76; 5 Ency. of Evidence, 659.)

Arthur S. Guerin, Jr., and Paul W. Hyatt, for Respondent.

Permission to amend an answer during the progress of the trial is within the sound discretion of the trial court. (Hayes v. Flesher, 34 Idaho 13, 198 P. 678.)

Great liberality should be allowed in amending pleadings in furtherance of justice and unless the exercise of the discretion to permit amendments vested in trial court deprives the complaining party of some substantial right, it is not error. (Havlick v. Davidson, 15 Idaho 787-792, 100 P. 91; Panhandle Lbr. Co. v. Rancour, 24 Idaho 603-608, 135 P. 558; Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Parke v. Boulware, 9 Idaho 225-231, 73 P. 19; Palmer v. Utah & N. Ry. Co., 2 Idaho 382-384, 16 P. 553.)

It is not error for the trial court to allow amendments to a pleading where other party is allowed a continuance if he desires. (Lorang v. Randall, 27 Idaho 259, 148 P. 468.)

Where a nonexpert shows that he has had opportunity to observe a person as to his mental competency, he may state his opinion as to the sanity or insanity of the person in question without giving the observed data. (Weber v. Della Mt. Min. Co., 14 Idaho 404, 413, 94 P. 441; 4 Wigmore on Evidence, 2d ed., pars. 1922 and 1935; Ritchey v. Jones, 210 Ala. 204, 97 So. 736.)

Whether the opinion of a nonexpert witness as to mental capacity is based upon sufficient observation is addressed to the sound discretion of the trial court and its ruling will not be disturbed unless this discretion has been abused, and this is so even in jurisdictions where facts and circumstances on which opinion is based must be detailed. (Fritcher v. Kelley, 34 Idaho 471, 476, 477, 201 P. 1037.)

GIVENS, J. Budge, C. J., Taylor and Wm. E. Lee, JJ., and Hartson, D. J., concur.

OPINION

GIVENS, J.

Appellant brought suit to have a deed executed by Mary Catherine Herring to respondent set aside on the grounds that the grantor was, at the time the deed was executed, incompetent; that the deed was made because undue influence was exerted upon, and fraud perpetrated on the grantor; that the price paid for the property was inadequate.

An unverified answer was filed and at the conclusion of the plaintiff's case, an offer to amend by filing a verified answer was granted. Any error committed by the trial court in this respect was waived by appellant, the court offering to continue the case if appellant so desired. Appellant, however, chose to proceed, and showed neither at that time nor on the appeal any prejudice resulting from the allowance of the amendment.

Complaint is also made that the court permitted nonexpert witnesses to testify for the respondent that the grantor was mentally competent without detailing facts on which this conclusion was based. The witnesses did detail some facts and this court has laid down the rule that nonexperts may testify as to the mental condition of a person. (Weber v. Della Mt. Mining Co., 14 Idaho 404, 94 P. 441; Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037; see, also, Ritchey v. Jones, 210 Ala. 204, 97 So. 736; State v. Soper, 148 Mo. 217, 49 S.W. 1007; 3 Jones on Evidence, 2d ed., pp. 2337, 2338.)

Appellant urges that the court erred in excluding evidence offered to show that relatives of the deceased grantor were insane, as bearing on her mental condition. The following were the instances referred to:

Respondent objected to certain testimony to the effect that Orville Herring, a son of Mary Katherine Herring, was in the insane asylum at Blackfoot. The objection was overruled, the court merely stating that if the argument later showed that this evidence was not within the issues, it would not be considered. There is nothing in the record to indicate that this evidence was not, in fact, considered. Where evidence is received, subject to future exclusion, in the absence of any showing to the contrary it will be presumed to have been considered. (Seeley v. Security National Bank, 40 Idaho 574, 235 P. 976; McKee v. Bassick Mining Co., 8 Colo. 392, 8 P. 561; German American Bank v. Manning, 133 Mo.App. 294, 113 S.W. 251; 38 Cyc. 1344.)

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