Lee v. Ullery

• Decision Date: 07 May 1940
• Docket Number: 36337
• Citation: 140 S.W.2d 5,346 Mo. 236
• Parties: Frank H. Lee et al. v. Virginia Ullery et al., Appellants, Marion Lee et al., Defendants
• Court: Missouri Supreme Court

140 S.W.2d 5

346 Mo. 236

Frank H. Lee et al. v. Virginia Ullery et al., Appellants, Marion Lee et al., Defendants

No. 36337

Supreme Court of Missouri

May 7, 1940

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Reversed and remanded.

David E. Blair, Ray Bond, R. A. Mooneyham, Spencer & Spencer and Burton W. Arnold for appellants.

(1) A lay witness is not competent to testify that, in such witness' opinion, a person is of unsound mind or insane without relating the facts upon which such opinion is based and, when the facts related by the lay witness and not inconsistent with such person's sanity, then the opinion of such lay witness that the person under consideration is insane or of unsound mind is not admissible. Nute v. Fry, 111 S.W.2d 87; Platt v. Platt, 123 S.W.2d 56; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 286; Clark v. Commerce Trust Co., 333 Mo. 243, 62 S.W.2d 882; Kaechelen v. Barringer, 19 S.W. 1037; In re Bearden (Mo.), 86 S.W.2d 593; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 775; State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Cochriel, 314 Mo. 712, 285 S.W. 443; State v. Finley, 12 S.W.2d 28; State v. Soper, 148 Mo. 235, 49 S.W. 1010. (2) Evidence of peculiarities, eccentricities, forgetfulness, inability to recognize friends, feebleness resulting from illness, etc., which are not inconsistent with sanity, cannot be used as a basis for opinion testimony of a lay witness that a person is of unsound mind or insane. Nute v. Fry, 111 S.W.2d 87; Beremeier v. Reller, 317 Mo. 614, 296 S.W. 753; Id., 37 S.W.2d 431; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 775; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 864; Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 463; Shapter v. Boyd, 37 S.W.2d 550.

Kelsey Norman, R. H. Davis, R. A. Pearson, Alfred K. Lee and Henry Warten for respondents.

Respondents do not challenge the rule that, ordinarily, a lay witness is not competent to give his opinion that a person is of unsound mind without first detailing the facts upon which he bases such opinion. Moreover, the testimony of the lay witnesses complained of on this appeal does not run counter to the rule above set out, for, as said on page 19 of appellants' brief, the witnesses were permitted to express their opinion that Martin Lee was insane because they had known him intimately for a long period of years. Knowing Martin W. Lee for a long period of years, they spoke from their association and observation of him, which, itself has been ruled competent evidence of the fact of mental incapacity. This is clearly pointed out in the case of Carpenter v. Kendrick, 299 Mo. 113. Non-expert witnesses are permitted to state their conclusions of fact, as facts, when the basic facts are of such a nature that they cannot be reproduced so as to present to the jury the picture imposed on the mind of the witness, such as the state of health, hearing, eyesight of another, ability to work, walk or use of the arms or legs. Kich v. United Rys. Co., 155 Mo. 70; Felton v. St. Ry. Co., 125 Mo.App. 239; 22 C. J., sec. 698, p. 604; Montana Railroad Co. v. Warren, 137 U.S. 348; Johnson v. Culver, 116 Ind. 278, 19 N.E. 129; Beaubien v. Cicotte, 12 Mich. 459.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is a will contest. Plaintiffs seek to set aside an alleged will of Martin W. Lee dated January 18, 1934. A trial was had to a jury; a verdict was returned against the alleged will; and judgment was entered thereon. A motion for new trial was filed and overruled, and proponents appealed.

Lee died January 25, 1934, one week after the execution of the alleged will. The petition alleges, and it is conceded, that he died seized and possessed of real and personal property; and that he left surviving him no wife or children. The will names Charles W. Lee, a brother, as principal beneficiary, while other brothers and a number of nieces and nephews are not provided for. Frank Lee, a brother, and certain beneficiaries of an earlier will, filed this suit.

The petition is in two counts. The first count seeks to have the alleged will of January 18, 1934, declared not to be the will of Martin W. Lee, and the second count seeks to have an earlier writing established as his last will. A demurrer to the evidence on the second count was sustained, since there was a failure to show that probate of the earlier document had been refused.

The issues joined on the first count were as to (1) mental incompetency to make a will and (2) the exercise of undue influence by Charles W. Lee. Both issues were submitted to the jury. No complaint is made as to the instructions.

Appellants, intending to present the sole issue as to the competency, relevancy and materiality of certain evidence offered by the contestants on the issue of mental incompetency, have expressly omitted the part of the pleadings and evidence dealing with the issue of undue influence and all of the instructions. The bill of exceptions discloses that a prima facie case was made by the proponents of the will of January 18, 1934, by offering in evidence the alleged will, proof of its probate in common form, and certain testimony as to the due execution of the alleged will. The contestants to sustain the issues on their part offered some forty witnesses. Twenty-eight of these, who were lay witnesses, testified that they had known Martin W. Lee over a period of years; that they had seen him frequently during the last few years of his life; that during the last few months of his life, and prior to the execution of the said will, they had noticed a change in his mental condition. These witnesses testified that, in their opinion, the said Martin W. Lee was insane at and before the date of the execution of the alleged will. The questions by which this evidence was elicited, were objected to, and exceptions saved as hereinafter stated.

Appellants' abstract for the most part omits all of the cross-examination of these witnesses. It omits all of the rebuttal evidence of proponents, and all of the medical testimony as to the mental incompetency of Martin W. Lee. It presents only a brief outline of the other evidence of contestants.

The abstract shows that the first time the question of the admission of the disputed evidence arose, was while witness Allie Lee was on the stand. She testified that she was the wife of Frank Lee, a brother of the deceased, and that she had known the deceased about 37 years. She detailed her association with him. It is unnecessary to repeat the evidence here except to say that the witness and deceased had been closely associated over a long period of years. At different times the deceased and his wife had made their home with the witness and her husband. At other times the deceased resided in the same community, so that they were closely associated. The witness was also closely associated with the deceased during the closing period of his life. The record is as follows:

"Q. Up until the time he was taken to the hospital did you notice any change in his mental condition, and if so, when did you notice such a change?

"By Mr. Blair: Object to that, for the reason she is a lay witness, and not qualified to testify without first detailing facts and circumstances upon which the testimony is based.

"By the Court: I am permitting it from the showing of her long continued knowledge and acquaintance and relationship with him, following those authorities in this State that support that ruling. They are both ways; and I will overrule your objection, and allow you an exception.

(Exception saved.)

"By Mr. Bond: The objection should be, object to the testimony, for the reason a lay witness is not permitted to testify a person is of unsound mind without detailing the facts and circumstances upon which the opinion is based. That is the objection. . . .

"By the Court: Overruled.

(Exception saved.)

"Q. (By Mr. Norman) I asked you if you noticed any change in his mental condition, and if so, when you noticed that change? A. (By the Witness) About four or five months before his death.

"Q. Four or five months before his death. I will ask you to tell the jury whether or not, in your opinion, he was sane, or insane, beginning four or five months from the time of his death and up until the time of his death?

"By Mr. Bond: Object to that, for the reason a lay witness is not competent to testify as to whether he was insane, without first stating facts upon which the opinion was based. Even then, it is a question for the Court.

"By the Court: I am, in this case, following the other line of decisions. They are both ways; and I am following the others. I may be in error. I will permit it, and allow you an exception.

(Exception saved.)

"Q. (By Mr. Norman) I will ask you this question: Beginning back four months, or approximately that, before his death, and up to the time of his death, whether, in your opinion, he was sane, or insane?

"By Mr. Bond: We make the same objection.

"By the Court: It is practically the same question. The same ruling. You may answer.

(Exception saved.)

"A. By the Witness) He was not in his right mind.

"Q. (By Mr. Norman) That is not the question, Mrs. Lee.

"A. He was insane. . . ."

To further illustrate the manner in which the challenged evidence came into the record we set out the testimony of two other witnesses.

Direct examination of Vernie Hine by Mr. Norman:

"I live in Joplin, have known Martin Lee for twenty-five or twenty-seven years, and saw him many, many times; I visited him in his home; I knew him intimately; I knew him during the last four or five or six months of his life.

"Q. Tell the jury whether or not you noticed any change in his mental condition?

"By Mr. Bond: We object. The witness has not made...