King v. King

• Decision Date: 25 May 1931
• Docket Number: 29343
• Citation: 134 So. 827,161 Miss. 51
• Court: Mississippi Supreme Court
• Parties: KING v. KING et al

134 So. 827

161 Miss. 51

KING v. KING et al

No. 29343

Supreme Court of Mississippi

May 25, 1931

Division B

Suggestion Of Error Overruled June 15, 1931.

APPEAL from chancery, court of Marshall county, HON. N. R. SLEDGE Chancellor.

Proceeding by Kit King to probate the will of H. W. King, deceased opposed by Miss Evie King and others. From an adverse judgment, proponent appeals. Reversed and remanded.

Reversed and remanded.

L. G. Fant, Sr. & Jr., of Holly Springs, for appellant.

Where a trial court admits an expert whose testimony is incompetent, there is reversible error.

Caleb v. The State, 39 Miss. 721; Russell v. State, 53 Miss. 367, at 380; Bane v. Gwinn, 7 Idaho, 439, 63 P. 634, 6 A. L. R. 511; U. S. Telegraph v. Wonger, 55 Pa. St. 262, 93 Am. Dec. 751; People v. Spooner, 1 Denio, 343, 43 Am. Dec. 672 (N. Y.); Crooks v. Tazewell Coal Co., 263 Ill. 243, 105 N.E. 132, Ann. Cas. 1915C, 304; In re Harris Estate, 247 Mich. 690, 226 N.W. 661.

One who had made only one examination of the subject and that for the purpose of testifying, did not qualify as an expert.

Fayette v. Chesterville, 77 Me. 28, 52 Am. Rep. 741.

The rules admitting the opinions of experts should not be unnecessarily extended, because experience has shown that it is much safer to confine the testimony of witnesses to facts in all cases where that is practicable and leave the jury to exercise their judgment and experience on the facts proved. The expert comes on the stand to swear in favor of the party calling him and it may be said he always justifies by his work the faith that has been placed in him.

Roberts v. N.Y. R. Co., 28 N.E. 486, 13 L. R. A. 499; Grigsby v. Clear Lake Water Works, 40 Cal. 396, 405; Thorn v. Worthing Skating Rink Co., Ch. D. 415, note 416, note 22 C. J. 735; Roy v. First Nat'l Bank, Aberdeen (Miss.), 33 So. 411; Note 64 L. R. A. 319; Note 12 L. R. A. 457; Note 62 L. R. A. 817; Ferguson v. Hubbell, 97 N.Y. 507, 49 Am. Rep. 544.

Courts have allowed experts with no knowledge of a man's hand to make comparisons, but to allow him to state his naked opinion when he has no knowledge and makes no comparison is unprecedent in Mississippi.

Moye v. Herndon, 30 Miss. 110; Jones v. Finch, 37 Miss. 461; Coleman v. Adair, 75 Miss. 660; Roy v. First National Bank (Miss.), 33 So. 494; Wilson v. Beauchamp, 50 Miss. 24; People v. Spooner (N. Y.), 1 Denio 343, 43 Am. Dec. 672; Newton v. Ricketts, 9 H. L. Cas. 263, 64 L. R. A. 318; Robson v. Rocke, 1824, 2 Adams Eccl. Rep. 53, 64 L. R. A. 318.

While absolute certainty is not required of an expert, his judgment must involve the element of such mental certainty on the part of the witness as will render it of real aid to the jury. Accordingly, no matter, how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture.

22 C. J. 640.

There is no conflict in the evidence in a legal sense where the only witness who disputed some of the established facts was so thoroughly discredited and his testimony so manifestly absurd and unbelievable as to be unworthy of belief.

Hardy v. Masonic Benefit Association, 103 Miss. 108.

It is uniformly held that the judgment of an expert, when opposed to positive evidence and to the dictates of common sense, will not support a verdict.

Roy v. First National Bank, 33 So. 411, 494 (1903); I. C. R. Co. v. Emmerson, 91 Miss. 230, 44 So. 928; Baird v. Shaffer, 101 Kans. 585, 168 P. 836, 1918 L. R. A. 638; In re Estate of John O'Conner (Neb.), 179 N.W. 401, 12 A. L. R. 199; In re Young's Estate, 59 Ore. 348, 116 P. 95, Ann. Cas. 1913B, 1310; Marshall v. Thomas, 31 Ohio C. C. 363; People v. Spooner, 1 Denio 343, 43 Am. Dec. 672; Colbert v. State, 125 Wis. 423, 104 N.W. 61; Succession of Lord, 92 So. 61; Wagner v. State, 146 Ind. 181, 12 A. S. R. 777.

The expert evidence in the case presented no issue to the jury since it merely elaborates the peculiarities of the handwriting of a man of ninety.

Wright v. Flynn, 69 N.J.Eq. 753, 61 A. 973, 6 A. L. R. 521; Brown v. Mutual Ben. L. Ins. Co., 32 N.J.Eq. 809, 6 A. L. R. 521; Robinson v. Arnet, 15 La. 263, 6 A. L. R. 516; Ligon v. Smith, 140 Ky. 202, 130 S.W. 1092, 6 A. L. R. 515; Dambroff v. Bank of United States, 163 N.Y.S. 86; People ex rel. Hansen v. Waldo, 163 A. D. 665, 148 N.Y.S. 985; People ex rel. Mara v. Waldo, 166 A. D. 890, 150 N.Y.S. 985; Spooner v. Best, 8 Ky. L. Rep. 185; Card v. Moore, 68 A. D. 327, 74 N.Y.S. 18; Banque National v. Trembly (1913), Rap. Jud. Quebec C. S. 304, 6 A. L. R. 511; Rex v. Law, 19 Manitoba L. R. 259; Talbot v. Dillard, 22 Tex. Civ. App. 360, 54 S.W. 406; McWilliams Estate, 259 Pa. 526, 103 A. 365; Succession of White (La.), 61. So. 860.

An instruction incorrectly states the law, where its effect is to the jury, if proponent has failed to prove that both witnesses are credible witnesses in the eyes of the jury, then the jury must find for contestants.

Credible in the requirement of a witness to a will means "competent" witness. It has nothing to do with the reputation for veracity.

Rucker v. Lambdin, 12 S. & M. 230; Swanzy v. Kolb, 94 Miss. 10, 46 So. 549.

The instruction designed wholly to emphasize the issue of the credibility of the attesting witness was not counteracted by a subsequent one correctly stating the law.

Hitt v. Terry, 92 Miss. 671.

Holmes & Bowdre, of Hernando, for appellee.

An expert witness is a person who by virtue of special acquired knowledge or experience on a subject, presumably not within the knowledge of men generally, may testify in a court of justice to matters of opinion thereon as distinguished from ordinary witnesses who can in general testify only to facts.

Century Dictionary.

Writings shown to be genuine are admissible in evidence for the purpose of comparison with a disputed writing, either by witnesses on the stand, or by the jury, without the intervention of witnesses.

Harrison v. Eagle Lumber & Supply Co., 119 So. 203.

As a general rule, the opinions of a person skilled in any science, art or trade, are admissible in evidence in relation with matters connected with his profession.

Jones v. Finch, 37 Miss. 461.

Handwriting witnesses need not be an expert, witnesses unskilled may give opinion as to genuineness of signature based on actual knewledge of personal handwriting.

McCarty v. Love, 145 Miss. 331.

Smith & Smith, of Holly Springs, for appellee.

The testimony of handwriting experts is admissible on the issue of the genuineness of handwriting.

Jones v. Finch, 37 Miss. 461.

It is of no consequence how or by what means peculiar skill or knowledge is acquired; it is quite sufficient if it is in fact possessed.

Marcy v. Barnes, 82 Mass. 161.

It is elementary law that the inquiry as to the expert's competency is addressed to the sound discretion of the trial court, whose decision on the evidence will not be disturbed on appeal except for palpable abuse.

Kirby v. Brooks, Ill So. 235; Griffin v. Working Woman's Home Assn., 44 So. 605; People v. Spencer, 264 Ill. 124, 106 N.E. 219; Forgery v. First Nat. Bank of Cambridge City, 66 Ind. 123; Peninsula Exch. v. Express Co., 148 Md. 465, 128 A. 403; Mahan v. Adams, 124 A. 901; State v. Webb, 18 Utah 441, 56 P. 159.

The conclusion of a handwriting expert as to the genuineness of a signature, standing alone, would be of little or no value but supported by sufficiently cogent reasons his testimony might amount almost to a demonstration.

Venuto v. Lizzo, 148 A.D. 164, 132 N.Y.S. 1066; Stockwell v. Brinton, 26 N.D. 1. 142 N.W. 242; Colbert v. State, 125 Wis. 423; Manguson v. State, 187 Wis. 122, 203 N.W. 749.

So long as more than one reasonable inference may be drawn, as is the case here, this belongs to the jury.

Tyson v. Utterback, 122 So. 496.

The height to which evidence must rise in the scale of proof in order to entitle a party litigant to a peremptory instruction is, of course, very much greater than that to which it must rise in order to entitle such a party to the verdict of the jury.

Ala. Great Southern R. R. Co. v. Daniell, 108 Miss. 358, 66 So. 730.

In considering the matter of a peremptory instruction for the proponent all that the evidence proves or tends to prove as alleged by contestants must be taken as true.

Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Gulf, etc., R. Co. v. Prine, 118 Miss. 90, 79 So. 62; New Orleans, etc., R. Co. v. Penton, 135 Miss. 571, 100 So. 521; New Orleans, etc., R. Co. v. Martin, 140 Miss. 410, 105 So. 864; Lowe v. Mobile, etc., R. Co., 116 So. 601; New Orleans, etc., R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Yates v. Houston, 141. Miss. 881, 106 So. 110.

An erroneous modification of an instruction may be cured by another instruction correctly stating the law.

American, etc., Co. v. Antrim, 88 Miss. 518, 41 So. 257; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Miss., etc., R. Co. v. Magee, 93 Miss. 196, 46 So. 716; Cumberland, etc., Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614; Alabama, etc., Co. v. Groome, 97 Miss. 201, 51 So. 703; Yazoo, etc., R. Co. v. Kelly, 98 Miss. 367, 53 So. 779; So. Ry. Co. v. Ganong, 99 Miss. 546, 55 So. 355; Miss., etc., R. Co. v. Pillows, 101 Miss. 527, 58 So. 483.

A correct, emphatic instruction for proponent of a will will correct a slight error in another instruction given for the contestants.

Hitt v. Terry, 92 Miss. 671, 46 So. 829.

Although one instruction standing alone may be incorrect yet if all the instructions taken together constitute the law correctly given the error is harmless.

Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590.

Smith & Smith, of Holly Springs, and Holmes & Bowdre, of Hernando, for appellees.

Where the proponent of paper...