First National Bank v. Wireback's , 106 Pa. 37 ( 1884 )

Mr. Justice Clark

delivered the opinion of the court,

At the trial of this cause, the testimony of Dr. E. C. Mann, a medical expert examined at a former trial, on behalf of the defendants, was admitted ; the plaintiffs objected to the reading of the notes upon several grounds; — that the testimony is based upon a hypothetical state of facts, different from that now proved; that the hypothetical question, in answer to which the witness then testified, is based upon facts, of which no evidence whatever is now given, and, that the plaintiff has a right to cross-examine the witness, upon the basis of the testimony now adduced. We cannot say, from an examination of the testimony taken at the last trial, that the hypothesis assumed is not fairly consistent with the facts sought to be established, and alleged to be proved, by the defendants. The form of the interrogatory was such as disclosed clearly what specific facts were assumed, and upon which, the opinion óf the expert was given; that opinion, therefore, could have no weight with the jurors in their deliberations, unless they found the facts assumed in the hypothesis, to have been established by the proofs. Each side had the right to an opinion from the witness, upon any hypothesis reasonably consistent with the evidence; and, whether the facts were fairly and fully stated in this instance, for the opinion of the witness, was a question for discussion to the jury. The opinion of an expert can be of no value, when the facts of which the opinion is predicated, are not established ; whether they are so established is for the subsequent consideration of the jury. The plaintiff was certainly entitled to the benefit of a proper cross-examination, of which, however, he availed himself at the time; it cannot be pretended, that a deposition is rendered inadmissible, from the fact simply, that new and unexpected matters have been introduced at the trial, upon which no cross-examination was conducted; this is the form and meaning of the objections made. The first specification of error is not sustained. It is certainly a well recognized rule of evidence, that a witness, who has not special knowledge and experience, cannot be permitted to testify to a mere matter of opinion. A person may acquire skill by general study and experience, in special departments of knowledge, such as will qualify him to give an opinion as an expert, in matters pertaining to that specialty — or, he may possess such special personal knowledge of the particular person or thing under consideration, as will qualify him, although not properly an expert, to express an opinion as to that particular object; in either case, however, the qualification of the witness must first appear, in the former, by establishing his pretensions as an expert, in the latter, by showing the personal knowledge and particular facts, upon which the witness has been enabled to rest an opinion. The question of qualification is, in both cases, one, in the first instance, for the court, resting largely in the exercise of a sound discretion; and it is for the jury to decide, whether any, and if any, how much weight should be given to his opinion. Del. & Chesapeake Steam Tow-boat Co. v. Stairs, 19 P. F. S., 36; Minnequa Spg. Impt. Co. v. Coon, 10 W. N. C., 502.

We are satisfied that the discretion of the court was wisely exercised in this case, in not permitting Joseph Richards, and the other witnesses, named in the 3d assignment of error, to give an opinion as to Mr. Wirebach’s sanity: One, not having the pretensions of an expert, cannot be permitted to give an opinion as to another’s mental soundness or unsoundness, until he has first testified to facts within his own knowledge, tending to show that mental condition: Bank v. Wirebach, 12 W. N. C., 150 ; Dickinson v. Dickinson, 11 P. F. S., 401; Stokes v. Miller, 10 W. N. C., 241. The particular facts, stated by each of these several witnesses, must be taken alone, as the basis of the proposed opinion of that witness; thus considered, they are found to be in themselves inconclusive in their nature, of such a neutral character as, in some instances, at least, to be consistent either with soundness or unsoundness of mind. Such facts could not reasonably be assumed as the basis of an opinion, as to either. We cannot without unduly extending this opinion, refer, in detail, to the facts testified, but a careful examination will show that the discretion of the court was well exercised.

Whilst the facts thus isolated, in themselves, may be inconclusive, and not such as to justify the expression of an opinion, by the witness stating them, it does not follow, that they are wholly immaterial and irrelevant to the question under consideration. The opinion of an unskilled witness must be given from facts within personal knowledge, but the judgment of the jury is upon the whole testimony in the cause. A fact altogether inconclusive in itself may form a link in a chain of circumstances, and become of the largest importance; it may be one of a number of facts, the force of which, taken together, cannot be broken. Thus the mere fact of a patient’s feeble health, or of his suffering from paralysis, taken alone or together, may indicate some degree of mental impairment, but they do not tend to prove want of mental capacity, that condition of mind which incapacitates the patient from the performance of ordinary business affairs; considered, however, in connection with his acts and declaration, they may become an important factor in the judgment of the jury. We are of opinion, therefore, that the 2d and 3d assignments of error are not sustained.

The objective point of inquiry, on the part of the jury was as to the mental condition of Wirebach, on the 7th day of December 1876; the testimony as to his condition, before and after that date, was only important as it shed light upon his condition at that time. As sanity is the normal condition, the burden of proving mental uusoundness is always upon those who allege it; if however general or habitual unsoundness of mind be once established, the burden of proving a lucid interval or a restoration, at any particular time, is thrust upon those who allege the fact. The learned court was of opinion however, and so instructed the jury, that there was not sufficient evidence, from which the jury could find a general state of unsoundness during the year 1876 and prior to Dec. 7,1876 the date upon which the note in suit was indorsed. To the same effect was the affirmance of the plaintiff’s 8th point: “ The testimony of the defence relates to isolated conditions of mind during 1875 and part of 1876, and, even if believed by the jury, is too weak and inconclusive to establish habitual unsoundness of mind during these years.” This instruction was in conformity with the former rulings of this court, and was certainly as favorable to the cause of the plaintiff, as they could expect. The evidence of Wirebach’s mental condition during the years 1875 and 1876, was but fragmentary in its character; it disclosed at the best merely isolated and distinct instances, at intervals, of alleged mental disturbances. The testimony was not of that kind, which exhibited his condition continuously during those years, by an attendant, or by persons familiar with his every day life and condition, and the insanity alleged was not of that bold type which would clearly define lucid intervals. Considerations of this character doubtless led the court to say, that the testimony was too weak and inconclusive to establish habitual unsoundness of mind during the year 1875 and 1876. The effect of this instruction was to leave the burden of proof where it primarily belonged. If the facts shown did not establish habitual unsoundness, they were still proper for consideration upon the main question, the decedent’s mental condition at the time of the endorsement. The state and condition of a person’s mind is proven as any other fact, and his conduct for a reasonable time both before and after the act done, is admissible for that purpose. That conduct may embrace simply isolated instances, at considerable intervals, acts apparently inconsistent with sanity at the time, too inconclusive, either to found an opinion upon or to establish general insanity, nevertheless, these isolated circumstances are material as far as they shed light upon his mental condition at the time the act was done.

The court was requested to charge the jury, that under the law and the evidence they should find for the plaintiff. This instruction the court declined to give, and the refusal so to charge constitutes the last assignment of error. The doctrine that when there is a scintilla of evidence of a material fact the question must be submitted to the jury, is not now recognized as the law of this state. “The more reasonable statement of the rule,” says Shabswood, J., in Howard Express Co. v. Wile, 14 P. F. S., 201, “is, that when there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.” To apply this rule, we must take that part of the testimony relied upon by the defendants alone; if, taken alone, it is insufficient to authorize an inference of mental incapacity, then there is really no evidence upon which, in law, a finding of that fact can be supported; insufficient evidence is, in the law, no evidence at all, and, in such case, it is the clear duty of the court, when so requested, as matter of law, to take the case from the jury. The language of the court, in Howard Express Co. v. Wile, supra, is clear upon this point: — “Evidence maybe legally admissible as tending to prove a particular fact, which yet by itself is utterly insufficient for the purpose. It may be a link in the chain, but it cannot make a chain unless other links are added. Where successive juries, from prejudice against one party or sympathy for the other, persist in finding verdicts wholly unwarranted, must the court permit palpable injustice to be done ? If a verdict is contrary to the charge of the court, on a question of law, it must be set aside whether it be the second, or the second hundredth. Where evidence on both sides is to be weighed, so as to determine on which side the scales incline, the jury is the appropriate tribunal. But when the weight on one side is of such a character as not to incline the beam at all — what the civilians term a mere adminiculum, — good to help something else, but nothing in itself,— nothing but a conjecture, then, it is as much a question for the court as if even this scintilla was absent.”

In the case at bar, there is evidence on the part of the defendants writich, taken alone, would justify the belief that the decedent was, at the time of making this indorsement, suffering from the effects of at least two strokes of paralysis,; that this disease is due to an affection of the brain, the result of pressure by blood clot upon the brain surface; that the mental powers depend upon the integrity of the brain, and that injury to the mental faculties is in direct proportion to the damage done to the brain structure. It is in evidence that the decedent had, at the time, the shambling, shuffling gait, twisted mouth, indistinct articulation in speech, and peculiar facial expression, incident to the disease. From this physical appearance, and his conduct from time to time as detailed by those who had seen him, the opinion of at least two of the expert witnesses was that he was suffering from cerebral paralysis. A large number of witnesses were called, however, to show the extent or degree of mental impairment; they testified to a great variety of facts and circumstances tending to show that, although previously a man of much business capacity and experience, he had become incompetent to discharge the most ordinary business affaire. It is unnecessary to refer to these facts in detail, — some of them were certainly very trivial, and taken singly were altogether inconclusive, — but from the whole taken together, and alone, the jury might fairly infer the fact of mental unsoundness; it is by this character and quality of evidence the condition of the mind is ordinarily shown; the evidence is perhaps not strong, but in the absence of countervailing proof it cannot be doubted that the inference of mental incapacity to transact business was legitimate and reasonable; upon the hypothesis of these alleged facts, two of the medical experts testified that such a degree of unsoundness was established as rendered him unfit to transact business, or to appreciate or understand the nature and effect of a contract of endorsement. Pour others of the defendant’s witnesses testified, from facts known to them personally, and which they stated as the basis of these opinions, to the same effect.

It is true, there is much to rebut this inference. The alleged lunatic was the owner of valuable property, over which, without restraint, he exercised full dominion; he was the president of a street passenger railway company in Easton, and served the company in that capacity; he voted at the elections; he made contracts ; was examined as a witness, and testified with seeming intelligence, &c., but with the preponderance of the testimony we have nothing to do; the weight of the testimony was for the jury. We cannot consider the ease as upon a motion for a new trial; the only question for this court to consider is, as to the sufficiency of the facts, shown by the defendants, to rebut the legal presumption of sanity; the character of the witnesses, and their credibility, was for the jury. Three verdicts have already been recorded for the defendants upon evidence substantially the same; three times has the case been considered in this court, and it is certainly late in this litigation now to discover that there is no evidence to justify a submission to a jury.

The question for the jury to determine was, whether Mr. Wirebach was of unsound mind on 7th December, 1876, the evidence given of the state of his mind, before and after that date was, as we have already said, important only as it tended to show his condition on that day. The testimony of Lehr, Fackenthal and Stout, as to his mental condition on the 6th, was in view of its reference to matters occurring on the day previous to the indorsement, and of the admitted capacity of the witnesses to judge, of the greatest importance; the learned court in the charge was most explicit and emphatic in declaring its importance, but it was evidence in rebuttal, and was wholly for the consideration of the jury. Much as we may doubt the correctness of the findings of the jury, as matter of law, we cannot say that the verdict should have been for the plaintiff.

The judgment is affirmed.