Swygart v. Willard

• Decision Date: 25 January 1906
• Docket Number: 20,473
• Citation: 76 N.E. 755,166 Ind. 25
• Parties: Swygart et al. v. Willard et al
• Court: Indiana Supreme Court

76 N.E. 755

166 Ind. 25

Swygart et al. v. Willard et al

No. 20,473

Supreme Court of Indiana

January 25, 1906

From Porter Circuit Court; Willis C. McMahan, Judge.

Action by Ella Willard and others against John Swygart and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Meyer & Drummond and N. L. Agnew, for appellants.

Brick & Bates, Conley & Frank, E. D. Crumpacker, D. E Kelley and McInerney & Wurzer, for appellees.

Montgomery J. Gillett, C. J. did not participate in this decision.

OPINION

Montgomery, J.

This action was brought by appellees in the circuit court of St. Joseph county, to contest the will of George W. Swygart, deceased, for the reasons that (1) the testator was of unsound mind, (2) the will was unduly executed, (3) the execution of the will was procured through undue influence, and (4) because of material alterations in the will since the death of the decedent. The venue of the cause was changed to Laporte county, and thence to Porter county, where a trial by jury resulted in a verdict and judgment in favor of appellees. Appellants filed joint and several motions for a new trial, alleging 173 grounds or reasons therefor, which motions were overruled, and exceptions duly saved.

The ruling of the court in denying appellants a new trial is the only alleged error assigned.

The second alleged cause for a new trial was based upon a motion to strike out the answer to the following question propounded by appellees to their witness on direct examination: "How was he in his latter years, about his drink, Mr. Gise, how much did he drink, and what was its effect upon him, as you noticed him? A. Well, he drank a great deal more than he did in prior years, and he used more profanity and was more indecent." The witness had previously testified to an acquaintance with the testator for ten years, and to his habit of using intoxicating liquors, and as to other habits. If such habits had grown and become more pronounced within the knowledge of the witness it was proper for him so to state. Gillett, Indirect and Collat. Ev., § 213.

This court in the case of Louisville, etc., R. Co. v. Wood (1888), 113 Ind. 544, 553, 14 N.E. 572, pertinent to this point said: "In determining whether an injured person is growing better or worse, a non-expert witness must necessarily express an opinion, for, as the cases we have cited hold, the fact is one that can not be described by any other than an expert witness. Any witness of ordinary intelligence may be able to state that a sick or wounded person has grown worse or has improved without being able to give an accurate description of his condition, and this brings the case fully within the authorities. Undoubtedly, the facts on which the conclusion rests may be asked for on cross-examination, but the opinion is not incompetent merely because the witness can not adequately state the grounds on which it rests, although the failure to do so may, perhaps, weaken its probative force."

In response to the next question the witness, over appellants' objection, explained his meaning in the use of the word "indecent." There was no error in overruling appellants' motion to reject this answer.

Specifications 3, 4, 5, 6, 7, 8, 11, 13, 14, 18, 19, 20, 22, 25, 26, 32, 42, 49, 52, 54 and 60, are of the same general character, and the rulings therein complained of were correct. It is further made manifest that no prejudicial error could have resulted from these rulings, since the court at the time stated that, in permitting such expressions as "profanity," "indecency," "ungovernable temper," "strong language," "rational," and the like, to stand, counsel on either side would be given ample latitude on cross-examination to bring out full details. Bower v. Bower (1895), 142 Ind. 194, 200, 41 N.E. 523; Johnson v. Thompson (1880), 72 Ind. 167, 171, 37 Am. Rep. 152.

(9) Appellees asked their witness the following question: "Well, now, from what you have stated, from what you have seen of George W. Swygart, will you tell the jury what you think as to his being of sound or unsound mind during those ten years you knew him." Appellants objected on the ground that the opinion sought was not limited to the facts and appearances detailed to the jury. The question is unskillfully framed, but we think was intended to elicit the opinion of the witness upon the facts gathered from his acquaintance with and observation of the deceased for ten years, and detailed to the jury in his previous testimony, and that the rule invoked by appellants was not violated. Specification forty-six is very similar, but the question was in better form and the objection untenable. Kenworthy v. Williams (1854), 5 Ind. 375; Rush v. Megee (1871), 36 Ind. 69; State, ex rel., v. Newlin (1879), 69 Ind. 108; Stumph v. Miller (1895), 142 Ind. 442, 41 N.E. 812.

(10) Appellees propounded to their witness John Finch a question calling for his opinion as to the sanity of the testator, to which appellants objected, for the reason that no facts had been stated by him which tended to prove that the testator was of unsound mind at the time of making the will and codicil. This witness had testified to an acquaintance with the testator for twenty-five years, to his appearance, walk, manner of conversation, habits, disposition and memory. The witness was clearly competent to express an opinion upon these facts as to the mental condition of the deceased. The weight of such opinion depended upon the primary facts given, and was exclusively for the jury. If any material facts are stated at all by the witness tending to show such knowledge and intimacy with the testator as to enable him to form an opinion of the testator's mental condition, it is the duty of the trial court to permit such opinion to be expressed, and to go to the jury for whatever it may be worth. Colee v. State (1881), 75 Ind. 511; Goodwin v. State (1884), 96 Ind. 550; Carthage Turnpike Co. v. Andrews (1885), 102 Ind. 138, 143, 52 Am. Rep. 653, 1 N.E. 364; Johnson v. Culver (1888), 116 Ind. 278, 19 N.E. 129; Bower v. Bower, supra; Blume v. State (1900), 154 Ind. 343, 56 N.E. 771.

A contrary rule, requiring the trial court at his peril instantly to determine the effect of such evidence, would subject the court to constant danger of invading the province of the jury and result in many harmful errors; while the holding now approved can rarely, if ever, operate to the prejudice of the rights of either party. The court in this case by instruction twenty-nine specifically advised the jury that non-expert witnesses could only give opinions upon facts detailed by them to the jury; and that the jury were not bound by such opinion, but were at liberty to examine the facts stated, and if no facts tending to support the opinion had been given by a witness, such opinion might be wholly disregarded. Appellants' objection to this question was properly overruled. Specifications 16, 23, 33, 34, 47 and 48 were based on similar objections, and in all these instances the objections were untenable, and the rulings manifestly harmless.

(70 and 71) In response to a question whether mania, previously mentioned as one of the classifications of insanity, was what is popularly regarded as "craziness," Dr. Long answered: "I believe that is the idea." Appellants' objection to the question and motion to strike out the answer were overruled. The objection was made after the answer had been given, and was too late to be availing. Ewbank, Indiana Trial Ev., § 258.

The ruling in refusing to strike out the answer was certainly harmless. The inquiry was merely preliminary. In introducing the witness, and preparatory to the presentation of the point directly involved, it is always proper, if not positively necessary, to ask some questions of a general character. It is eminently proper also that a witness dealing with scientific or technical terms should, if possible, make his meaning more clear by reference to terms in common use. (72) It was not improper, for the same reasons, to permit this witness to explain the meaning of "monomania" as used by him. (73 and 74) The doctor was rightfully permitted to explain the distinctive peculiarities of a mind suffering from insane delusions; (75 and 76) the symptoms of dementia; and (79 and 85) upon a hypothetical statement of facts, showing some form of mental unsoundness, he was permitted to testify under what class of unsoundness of mind the testator should be placed. (82) A medical expert may also explain the effect resulting to the brain, nervous system and body of a man from the excessive use of alcohol. 2 Elliott, Evidence, § 1089.

(90) Judge Walter A. Funk, appellants' witness, was asked upon cross-examination the following question: "You know it to be a fact, don't you Judge, from your studies, that a person may be of unsound mind upon some particular subject or class of subjects, and yet be of sound mind upon other subjects or classes of subjects--you know that to be a fact don't you Judge?" Appellants objected, on the ground that the inquiry went beyond the realm of cross-examination of a non-expert witness. The objection was overruled; and the witness answered: "Yes, I have been informed of that being a fact." This witness had testified to an acquaintance with the decedent, to business transactions, conversations, his appearance and other incidental matters, and expressed an opinion that the testator was of sound mind. The extent to which cross-examination may go is left largely to the discretion of the trial court, and this court will only interfere where an abuse of such discretion is shown. The statement of the witness was in accord with other testimony in the case and was in nowise contradicted, and we can not perceive how appellants...