Pickering v. Harris, (No. 1290-5357.)

• Decision Date: 29 January 1930
• Docket Number: (No. 1290-5357.)
• Citation: 23 S.W.2d 316
• Parties: PICKERING v. HARRIS.
• Court: Texas Supreme Court

23 S.W.2d 316

PICKERING v. HARRIS.

(No. 1290-5357.)

Commission of Appeals of Texas, Section A.

January 29, 1930.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by C. M. Pickering, Sr., against Myrtle Harris and another. Judgment for defendant named was affirmed by the Court of Civil Appeals [12 S.W.(2d) 686), and plaintiff brings error. Judgment of the Court of Civil Appeals and of the district court both reversed, and cause remanded for new trial.

A. P. Park, A. P. Dohoney, and Otto S. Perfect, all of Paris, for plaintiff in error.

Beauchamp & Lawrence, of Paris, for defendant in error.

CRITZ, J.

This suit was filed by C. M. Pickering, Sr., hereafter designated plaintiff, against Myrtle Harris and her husband, hereafter designated defendant, to cancel a deed from the plaintiff to the defendant Myrtle Harris, and recover title and possession of 145.84 acres of land in Lamar county, Tex., on the ground of mental incapacity on the part of the plaintiff to execute the deed. Trial in the district court with a jury on one special issue resulted in a verdict and judgment for the defendant. Plaintiff appealed to the Court of Civil Appeals for the Sixth District at Texarkana, which court affirmed the judgment of the District Court. 12 S.W.(2d) 686. The case is now before the Supreme Court on writ of error granted on application of the plaintiff.

The one question submitted to the jury by the trial court and the answer thereto are as follows:

"Question No. 1. At the time of the execution of the deed in controversy, on August 6th, 1920, by C. M. Pickering to Henry Pickering was the said C. M. Pickering mentally competent, as mental competency is explained above, to execute said deed? Answer yes or no as you may find. Answer: Yes."

The Court of Civil Appeals has made a very fair statement of the issues before us for decision, and we therefore copy the following from the opinion of that court:

"The preponderance of the evidence at the trial indicated appellant was of unsound mind at the time he executed the deed. The real controversy between the parties was (it seems) as to whether the unsoundness of appellant's mind was such as to entitle him to avoid the deed on the ground that he lacked mental capacity to make it. Over appellant's objection on the ground it was the opinion and conclusion of witnesses as to a mixed question of law and fact involving the ultimate issue in the case, the court permitted appellant's wife, after she had testified that the deed in question was one of eight made at the same time by her and appellant to their children in conformity to appellant's suggestion that they make same, to testify further that in her opinion appellant at the time he executed the deeds `understood the nature and extent of his property,' understood he `was transferring same,' and understood `the consideration for which the transfer was made'; permitted the witness R. H. Young to testify that in his opinion appellant at said time `had mental capacity sufficient to understand the nature and extent of the transaction in which he was engaged in signing away his property to his children'; permitted the witness Grover Pickering to testify that in his opinion appellant at the time he executed the deed `knew the nature and extent of the property owned by him' and `had mental capacity to understand the nature and extent of that transaction'; permitted witness Dr. George F. Powell, testifying as an expert, to say in reply to a hypothetical question put to him that in his opinion, on the facts as stated in the question, appellant `did have sufficient mental capacity to understand the nature and extent of the transaction, and that he did have will power to refuse to sign the deed if he did not want to do so'; and permitted other witnesses to give like testimony. The assignments attacking as erroneous the action of the trial court in admitting the testimony indicated present the principal question on the appeal.

"Appellant insists his contention that it was error to admit the testimony as evidence over his objection, on the ground urged to it, is supported by the holding of the Supreme Court in Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, decided in 1895, and cases following it; while appellees insist that their contention to the contrary is supported by the holding in said case of Brown v. Mitchell, and also by the holding of the Supreme Court in Scalf v. Collin County, 80 Tex. 514, 16 S. W. 314, decided in 1891, and cases following it."

As will appear from the foregoing statement made by the Court of Civil Appeals and the one question propounded to the jury, the vital issue to be decided in the case at bar is:

Can a witness in a case involving the mental capacity of a person to execute an instrument give his opinion as to the mental capacity of such person when the answer embraces the very issue being tried, and to be decided by the jury; and does the testimony admitted in this case violate the rule that a witness cannot testify to a legal conclusion?

It is contended by the defendant that the evidence shown to have been admitted in this case is competent under the rule announced by our Supreme Court in Scalf v. Collin County, 80 Tex. 514, 16 S. W. 314, 315. In other words, it is contended by the defendants that under the holding in the Scalf Case the evidence is permissible, and does not call for an opinion of a witness involving a legal conclusion.

It is contended by plaintiff that the rule announced in Scalf v. Collin County, supra, is overruled by our Supreme Court in the later case of Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 624, 36 L. R. A. 64.

In Scalf v. Collin County, it is shown that a deed from one Lucretia James, deceased, to Collin county, Tex., was sought to be annulled, and the property therein conveyed recovered by those claiming to be the heirs of Lucretia James, on the ground of mental incapacity on the part of the grantor to execute the deed at the time it was signed. During the trial the county called several witnesses, some of them experts, and some not, and asked each witness certain preliminary questions touching their opportunities to observe Lucretia James, etc., and touching her sanity and mental condition, etc., after which counsel for the county were permitted to ask each witness the following question:

"In your opinion when you saw the said Lucretia James, did she have mental capacity sufficient to understand the nature and effect of such deed?"

Each of the witnesses answered the question: "In my opinion she did have."

The above question was objected to by the plaintiffs on the ground that the witness was not competent under the law to state an opinion on the question, and because the question embraced the very issue to be passed upon and determined by the jury.

The Supreme Court, in an opinion by Associate Justice Henry, holds as follows in regard to the admissibility of the above evidence.

"When the issue is one upon which the witness may properly state his opinion, he may do so, notwithstanding his answer embraces the very issue on trial. The conclusion of the witness is then testified to, as any other fact to be considered by the jury, for what they may believe it to be worth. In many cases witnesses may testify to the existence of the very fact to be found by the jury. The right to express an opinion includes the right to give it as to the degree or extent of the mental infirmity, and to apply it to the particular matter in controversy. We cannot agree with the appellants in the distinction that they seek to make in this respect."

If the holding of the Supreme Court in the Scalf Case is still the rule of evidence in this state, and has never been overruled by our Supreme Court, then the evidence under consideration in the case at bar is within the rule and admissible.

However, in our opinion, the above-quoted holding in the Scalf Case is clearly overruled by the Supreme Court in the later case of Brown v. Mitchell, supra.

In Brown v. Mitchell it is shown that Lizzie Brown executed a will, giving all of her property to her surviving husband, and afterwards died, and the will was duly probated. Later, suit was brought by those claiming to be the heirs of Lizzie Brown to set aside the probate of the will because of the alleged fact that she was not of sound mind, and did not have mental capacity to make the will at the time it was executed.

The opinion then shows:

"The interrogatory propounded to Mrs. Livingston, and her answer thereto, as found by the court of civil appeals, will fairly present the question as to both witnesses. The interrogatory was as follows: `From what you saw and observed of Mrs. Lizzie Brown, deceased, her talk and actions, and her mental and physical condition during the last ten or twelve days of her illness and at the time of the execution of the said instrument of writing, do you think that she had sufficient mental capacity to declare her last will and testament, and dispose of her property? A. I do not think that she was capable of making her will. All day she had been out...