Woodward Iron Co. v. Spencer

• Decision Date: 14 October 1915
• Docket Number: 93
• Citation: 69 So. 902,194 Ala. 285
• Parties: WOODWARD IRON CO. v. SPENCER.
• Court: Alabama Supreme Court

69 So. 902

194 Ala. 285

WOODWARD IRON CO. v. SPENCER.

No. 93

Supreme Court of Alabama

October 14, 1915

Appeal from Circuit Court of Bessemer; J.C.B. Gwin, Judge.

Action by Jim Spencer, by next friend, against the Woodward Iron Company for damages for injury while in their employment. Judgment for plaintiff, and defendant appeals. Affirmed.

The case was finally submitted to the jury on count 8 of the complaint, which alleges that plaintiff was in the service or employment of defendant, and in the course of his duties it became and was necessary for him to sprag cars so as to stop them after they were turned loose at the mouth of the mine and that defendant had provided a plank which was laid alongside its track for its servants and agents to stand on while spragging said car, and that while engaged in the discharge of his duty he was run upon by one of said cars and struck and so mashed and crushed that his leg had to be amputated. The negligence alleged is a defect in the ways works, plant, or machinery, in that the plank on which plaintiff stood to sprag said car on said occasion was old and worn and not suited for the purposes for which it was constructed and used, and that it had been rendered slippery to approach said track from an accumulation of oil and grease, and was a dangerous place on which to stand while spragging cars. The other matters sufficiently appear from the opinion.

Cabaniss & Bowie, of Birmingham, for appellant.

Mathews & Mathews, of Bessemer, and Beddow & Oberdorfer, of Birmingham, for appellee.

THOMAS J.

The assignments of error are based on the rulings of the court on evidence. The bill of exceptions does not set out the testimony in full. The recital thereof, in this connection is:

"The foregoing is all of the testimony and tendencies of the testimony that are necessary to be here stated to enable the court to pass upon the exceptions reserved as herein above set forth." Rule 32 of Circuit Court Practice page 1526 of the Code of 1907, and the amendment thereof, adopted June 23, 1913, 175 Ala. xxi.

The witness Rockett, examined by the defendant, was asked:

"Had you ever heard of anybody having an accident of this kind before or since that time? I mean to say, anybody having his foot slip from the plank?"

A question objected to, and the court's ruling thereon, must be tested by its form in connection with the statement of counsel to the court as to what was expected to be proved by the witness. If the question is improper in form, the statement of counsel will not put the court in error. This question called for hearsay testimony. The question, if in proper form, does not, however, come within the rule declared in Southern Ry. Co. v. Lefan, 70 So. 249.

The objections to questions propounded to witnesses Sarah Spencer and Jim Eastman make it necessary to consider the law on the question of a nonexpert giving opinion evidence touching sanity or insanity. The great weight of general authority is that the opinions of ordinary witnesses is admissible on the question of the sanity or the insanity of a person, upon the obvious ground that it is often impossible for a witness to adequately describe to the court or jury the actions, looks, and symptoms, which form the basis for determining the question. Jones on Ev. (2d Ed.) § 364, and the many authorities cited in support of the text; 3 Wigmore on Ev. §§ 1933-1938. The opinions of nonprofessional witnesses, however, are not admissible to prove insanity unless such opinions are based upon personal knowledge and observation; and it is generally held that before or after giving an opinion the witness must state the facts and circumstances on which the opinion is based. Hardy v. Merrill, 56 N.H. 227, 22 Am.Rep. 441; Appleby v. Brock, 76 Mo. 314; Ellis v. State, 33 Tex.Cr.R.R. 86, 24 S.W. 894; Sharp v. K.C. Ry. Co., 114 Mo. 94, 20 S.W. 93; Lassas v. McCarty, 47 Or. 474, 84 P. 76; Chicago Union Traction Co. v. Lawrence, 211 Ill. 373, 71 N.E. 1024; Boorman v. N.R. Ass'n, 90 Wis. 144, 62 N.W. 924; Hempton v. State, 111 Wis. 127, 86 N.W. 596. No general rule can be laid down as to what should be deemed a sufficient opportunity for observation. Clary v. Clary, 24 N.C. 78; McClackey v. State, 5 Tex.App. 320; Taylor v. Com., 109 Pa. 262; Chase v. Winans, 59 Md. 475; Wood v. State, 58 Miss. 741; Wise v. Foote, 81 Ky. 10; Kempf v. Koppa, 74 Kan. 153, 85 P. 806; Stutsman v. Sharpless, 125 Iowa, 335, 101 N.W. 105.

The question of the competency of a witness, whether expert or nonexpert, to give an opinion as to the sanity or insanity of the party inquired of, is a question for the court. The court's decision as to competency will not be revised unless it clearly appears to have been erroneous. Odom v. State, 174 Ala. 8, 56 So. 913; Johnston v. Johnston, 174 Ala. 220, 225, 57 So. 450; Parrish v. State, 139 Ala. 16, 42, 36 So. 1012; Braham's Case, 143 Ala. 28-41, 38 So. 919; Ala. Con. Coal & I. Co. v. Heald, 168 Ala. 644, 53 So. 162; Ford v. State, 71 Ala. 385; People v. McCarthy, 115 Cal. 255, 46 P. 1073, 38 L.R.A. 738, notes.

In Norris v. State, 16 Ala. 776, 778, 779, Mr. Justice Chilton said:

"But upon the question of sanity or insanity, the exception seems to extend beyond the opinion of medical men, and to allow the opinion of such witnesses, as from long intimacy, or familiar and frequent intercourse with the party alleged to be insane, peculiarly fit them to judge of his mental condition. Such opinion, however, must be preceded by the facts and circumstances. *** A person may be insane--he may carry along with him such marked and unmistakable indications of a diseased intellect as to satisfy every one familiar with his habits and peculiarities that he is insane, yet perhaps but few persons, without giving an opinion, could so describe the pathological condition of his mind as to communicate to a jury a distinct idea of his true condition. Shall the witness be confined to facts alone? Does not even a casual observer of mental phenomena fully recognize the impossibility of communicating to another the facts, and almost numberless minute circumstances, indicating a morbid action of the brain, and consequent mental aberration, the main force of which may consist in some peculiar characteristic, which none but the observer can fully appreciate? *** How then shall they be placed in possession of those mysterious and indescribable phases which insanity wears, which, though they make a correct and vivid impression upon the mind of the observer, yet lose much of their force by an attempted description? Must the prisoner lose the benefit of such testimony altogether, or shall the witness be required to furnish, as well as he may, a pantomimic delineation of the wild look, the vacant stare, the unnatural gait, the distorted countenance, the idiotic laugh, as well as the numberless caprices and sudden and apparently causeless exhibitions of joy and sorrow? Were such the law, the force of the testimony would be made to depend upon the powers of the witness for imitation."

It is, then, the rule in this state that a witness, shown to be intimate with the person whose sanity or insanity is the subject of inquiry, and to have had opportunity for observation sufficient to enable him to form a correct judgment of the mental condition of the party in question, may not only depose to facts, but give an opinion as to whether the person under inquiry was sane or not, at the time to which the inquiry is directed. Such an opinion of the nonexpert must be based upon his own personal knowledge, observations, acquaintance, and experience with the individual inquired about. Pritchard v. Fowler, 171 Ala. 662-669, 55 So. 147; Johnston v. Johnston, 174 Ala. 226, 57 So. 450; Parrish v. State, 139 Ala. 42, 36 So. 1012; Burney v. Torrey, 100 Ala. 157, 173, 14 So. 685, 46 Am.St.Rep. 33; Norris v. State, supra; Roberts v. Trawick, 13 Ala. 68-84; Melvin v. Murphy, 184 Ala. 188, 63 So. 546; Odom v. State, supra.

The question of sanity may be shown by opinions based on a mere negation of unnatural or peculiar conduct, without a specification of facts. It is competent for such a witness, shown to have known the person inquired about, to testify that he had never seen any indication or evidence of insanity. Caddell v. State, 129 Ala. 57, 30 So. 76; Dominick v. Randolph, 124 Ala. 557, 27 So. 481; Yarbrough v. State, 105 Ala. 43, 16 So. 758; Ford v. State, 71 Ala. 387; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193.

The witness Sarah Spencer testified that she was the mother of appellee; that "from his childhood to the present time he lived with me [[[[witness], and at the time of the accident"; that she "observed him daily"; that before the accident he was a "bright, smart boy and had good intelligence." Plaintiff's counsel then asked:

"Have you observed any difference from associating with him, about his mind and memory, since this accident happened to him and before?"

Defendant objected, on the ground that the question called for an "unauthorized conclusion of the witness," and duly excepted to the ruling of the court. The witness answered:

"He had a good mind before he got hurt, but now--Q. And what now? A. He had a good mind until he got hurt, but he hasn't got any mind now. Q. How does he manifest it, if you can explain it to the jury; since this injury what difference do you see, if any? A. He has a deafness, and he can't hear good, and he hasn't got real good mind now. I talk with my son sometimes, not much, and when I talk with him he does not talk connectedly along; he don't talk like he used to. His mind ain't as good as it used to be."

The witness, having shown constant opportunity to observe, and that she did daily observe, the plaintiff, who lived with her all...