Quimby v. Greenhawk

• Decision Date: 08 February 1934
• Docket Number: 102.
• Parties: QUIMBY ET AL. v. GREENHAWK ET AL.
• Court: Maryland Court of Appeals

171 A. 59

166 Md. 335

QUIMBY ET AL. v. GREENHAWK ET AL.

No. 102.

Court of Appeals of Maryland

February 8, 1934

Appeal from Circuit Court, Talbot County; Thomas J. Keating and J Owen Knotts, Judges.

In the matter of the will of Reuben N. Greenhawk. Petition and caveat by William Thomas Greenhawk and others against Emma Quimby, beneficiary under will, and Edward T. Miller executor. From adverse rulings, beneficiary and executor appeal.

Rulings reversed, and new trial ordered.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

T. Hughlett Henry, of Easton, for appellants.

Washington Bowie, Jr., of Baltimore (John C. North and Charles J. Butler, both of Easton, and Hugh M. Frampton, of Washington, D. C., on the brief), for appellees.

PARKE Judge.

Reuben N. Greenhawk executed a purporting will on February 8, 1932, whereby, after directing the payment of all his debts and funeral expenses and his executor to provide a fund for the perpetual care of the family burial lot, he gave and devised all his real and personal property to Emma G. Quimby. The testator died on March 3, 1932, and his will was produced before the orphans' court of Talbot county on March 5, 1932, by its custodian and executor, Edward T. Miller; and the three subscribing witnesses proved the execution of the will, which was not admitted to probate because notice had been given that a caveat would be filed. The petition and caveat were filed a week later by the three brothers of the testator, William Thomas Greenhawk, John W. Greenhawk, and Charles H. Greenhawk, who were his nearest next of kin and heirs at law. The caveat was based upon the grounds that the will was not duly executed; that the testator was mentally incompetent, and did not know or understand the contents of the will; and that the will was procured by undue influence. An answer was filed by the beneficiary and the executor, and, finally, six issues were framed by the orphans' court, and the record transmitted to the circuit court for Talbot county. The case was tried before the court, sitting as a jury, and on the fifth and sixth issues of undue influence and of fraud or duress the verdict was in favor of the caveatees; but on the first issue, which was the testamentary capacity of the decedent; and on the second issue, which was whether the purporting will was signed by the decedent, or by any one for him in his presence and at his expressed direction; and on the third issue, which was whether the paper writing was properly attested and subscribed by two or more credible witnesses; and on the fourth issue, which was whether the decedent knew or understood the contents of the purporting will at the time of its execution, the several verdicts were in the negative and, so, with the caveators. The pending appeal brings up for review ten exceptions taken to the rulings of the court on the evidence and the eleventh exception which is to the adverse rulings on the prayers.

Eight of the exceptions arising on objections to testimony relate to the form of hypothetical questions submitted to medical experts, and it will be convenient to consider these first. It has been the practice in this jurisdiction for some years to permit an expert to express his opinion upon facts in the evidence which he has heard or read upon the assumption that these facts are true. Negroes Jerry et al. v. Townshend (1856) 9 Md. 145, 159; Baltimore City Pass. Rwy. Co. v. Tanner, 90 Md. 315, 45 A. 188; Berry Will Case, 93 Md. 560, 579, 49 A. 401; Owings v. Dayhoff, 159 Md. 403, 151 A. 240; Rickards v. State, 129 Md. 184, 190, 98 A. 525; Daugherty v. Robinson, 143 Md. 259, 122 A. 124; Gordon v. Opalecky, 152 Md. 536, 137 A. 299; B. & O. R. R. Co. v. Brooks, 158 Md. 149, 148 A. 276; Baltimore v. State, 132 Md. 113, 103 A. 426.

In other words, while the better practice is to incorporate in a hypothetical question all the facts on which an expert witness is asked to give an opinion, yet the hearing or reading of the testimony is accepted as an imperfect substitute for the formal hypothetical question in furnishing the data for inference by the expert witness. Furthermore, since the inference or conclusion rests upon certain premises of fact, these premises must be true; and, in order that premises considered may be known and their truth or falsity be ascertained by the jury or the court, these premises must be expressly and particularly stated. For this reason the admissibility of a hypothetical question primarily depends upon whether it furnishes the tribunal with the means of knowing upon what premises of fact the conclusion is based. The problem is largely left to the sound discretion of the trial court, but clearly it is improper to admit an expert's inference or conclusion upon the reading or hearing either of all or of a specified part of the testimony in the case if such whole or part of the testimony so submitted as the premises for an inference or conclusion is conflicting in the important assumptions of factual truth to be made. Wigmore on Evidence (2d Ed.) § 681; 1 Greenleaf on Evidence (16th Ed.) § 441K, 441L.

The reason is that, when there is a conflict of testimony on material facts, no conclusion can be reached by the expert witness until he has first determined which of the facts in conflict are true, and in forming his judgment on what should be the premises from which he draws his inference or conclusion he must necessarily invade the province of the jury and pass on the credibility of witnesses and the weight of evidence. As was said in Jerry v. Townshend, 9 Md. 145: "It is clear that you cannot ask a witness, an expert, his opinion, as to the state of a party's mind, upon the evidence submitted to the jury. To do so would be to transfer the functions of the jury to the witness, and would permit him to decide upon the very fact at issue, and thus to control the verdict of the jury. It is equally clear, on the other hand, that you may ask such a witness his opinion upon a state of facts, hypothetically put, based upon the evidence, and this is in fact the proper way to submit such questions to a witness." In Woodbury v. Obear, 7 Gray (Mass.) 467, a medical witness was asked whether, having heard all the evidence, he was of opinion that the testator was of sound mind. The court held that the question was not proper in that form, stating: "This would be especially irregular where the evidence is conflicting, because it puts it in the power of the expert to give an opinion upon the credibility of the testimony and truth of the facts, which is purely a question for the jury, and then upon the value and efficacy of the facts and circumstances, in his opinion thus proved, upon the question of soundness of mind." Connor v. O'Donnell, 230 Mass. 39, 119 N.E. 446; Burnside v. Everett, 186 Mass. 4, 71 N.E. 82; Damm v. State, 128 Md. 665, 676, 97 A. 645; B. & O. R. R. Co. v. Thompson, 10 Md. 76, 83, 84; Walker v. Rogers, 24 Md. 237, 243, 244, 247; Baltimore & L. Turnpike Co. v. Cassell, 66 Md. 419, 7 A. 805, 59 Am. Rep. 175; Dexter v. Hall, 15 Wall. 9, 21 L.Ed. 73.

Although a medical expert may base his opinion upon the facts testified to by another expert, the witness may not have submitted to him, as a part of the facts to be considered in the formation of his inference and conclusion, the opinion of such other expert on all or some of the facts to be considered by the witness from whom the answer is sought. To do so would destroy the premises of fact upon which an expert, by reason of his own peculiar technical skill and knowledge, is permitted to give in evidence his own inference and opinion. Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43; McComas v. Wiley, 134 Md. 572, 580, 108 A. 196; Williams v. State, 64 Md. 384, 394, 1 A. 887; Kelly v. Kelly, 103 Md. 548, 554, 63 A. 1082; Coughlin v. Cuddy, 128 Md. 76, 83, 96 A. 869; Harris v. Hipsley, 122 Md. 418, 433, 434, 89 A. 852; and see annotation in 82 A. L. R. 1460-1492.

It is by these rules of evidence that the propriety of rulings on the admission of testimony is to be determined, and these eight exceptions will be first considered.

Without excluding the previously expressed opinion of two lay witnesses, Dr. Joseph D. Stout, a medical expert, who had heard or had read to him all the prior testimony, was asked during the taking of the evidence in chief of the caveators, to assume the truth of all the testimony which he had heard, and to give his opinion as to whether the decedent was mentally incapable of making a valid deed or contract on February 8, the day the purporting will was made. The caveatees excepted, and the admission of the opinion of the witness that the decedent was so incapable is the ruling presented for review by the first exception. Under similar conditions, with the addition that testimony upon which their conclusions were based did not exclude but included, not only the opinions of the two lay witnesses, but also the opinion of each preceding medical expert, Dr. William T. Hammond and Dr. William N. Palmer, both medical experts, gave like answers, and the reception of this testimony constitutes the second and third exceptions. The fourth bill of exception arose during the course of the testimony of Dr. Harry M. Stein, another expert witness. Dr. Stein had visited the decedent on February 9, the day after the execution of the assailed document, at the request of Dr. Merritt, the attending physician. After Dr. Stein had described the patient's physical and mental condition as found by him on this professional call, he, in response to a direct inquiry, testified that the decedent did not possess on February 8th the mental capacity to make a valid deed or contract. Dr. Stein was then...