In re the Will of Johnson

CLARK, Judge.

The caveator assigns as error the admission into evidence of the aerial photographs of the tracts of land owned by Mrs. Johnson at the time of her death. Authentication testimony does not appear in the record on appeal in question and answer form. The record reveals that propounder’s witness, Marshall Wood-all, testified that the aerial photographs were copies of those in the ASCS Office, that they showed the tracts of land referred to in the will of Mrs. Johnson; that he could illustrate the testimony by locating the tracts on the aerial photographs, and that he did so by outlining them in red.

“The same general principles which apply to the admissibility of photographs generally apply to aerial photographs. . . .” 29 Am. Jur. 2d, Evidence § 796 (1967). See Annot., 57 A.L.R. 2d 1351 (1958). “[A]n aerial photograph is admissible in evidence on the same basis as a photograph of any other type.” 3 C. Scott, Photographic Evidence § 1411 (2d ed. 1969). Under some circumstances expertise may be required for both authentication and interpretation of an aerial photograph, but in the case before us the aerial photographs were admitted in evidence for use by the witness Marshall Woodall, attorney who prepared the will, for the simple purpose of illustrating his testimony by locating thereon the tracts of land referred to and devised to testatrix’s two children. A photograph must “be identified as portraying the scene with sufficient accuracy, but it need not have been made by the witness himself, provided he can testify to its adequacy as a representation.” 1 Stansbury, N. C. Evidence § 34 (Brandis Rev. 1973). The evidence is sufficient to identify the aerial photographs as representing the scenes depicted.

To support his assignment of error the caveator relies on Gragg v. Burns, 9 N.C. App. 240, 175 S.E. 2d 774 (1970), where the court found prejudicial error in the admission of a large aerial photograph from the Caldwell County Tax Office, purportedly portraying the section of Caldwell County in which the road in controversy was located. The court stated: “The assignment of error is well taken for the primary reason that the photograph or map was not properly authenticated. . . .” 9 N.C. App. at 242, 175 S.E. 2d at 776. We do not find this case controlling because, sub judice, there was proper authentication. Further, assuming arguendo that there was error in the admission of the aerial photographs, it does not appear that their admission was prejudicial to the caveator.

The caveator’s other assignment of error is that the court failed to present to the jury the following requested instructions :

“I charge you that in connection with Dr. Adair’s testimony, you can give some importance to his opinion, because he is a medical doctor who testified upon a matter within the scope of his profession and based on his personal observations and knowledge of the testator. But, I further charge you that you are the triers of the facts and not the witnesses, not even an expert witness. So after listening to Dr. Adair’s testimony, although you are not bound by it, you can give some weight to the fact that he is a medical doctor who was expressing an opinion based on his personal observation and knowledge of the testator. The law attaches peculiar importance to the opinion of medical men who have the opportunity of observation upon a question of mental capacity, as by study and experience in the practice of their profession, they become experts in the matter of bodily and mental ailments.”

The caveator offered the instructions in reliance on Flynt v. Bodenhamer, 80 N.C. 205 (1879), In re Peterson, 136 N.C. 13, 48 S.E. 561 (1904), and In re Holland, 16 N.C. App. 398, 192 S.E. 2d 98 (1972), cert. denied, 282 N.C. 581, 193 S.E. 2d 743 (1973). In Flynt the trial judge had instructed the jury “that the law attaches peculiar importance to the opinion of medical men who have the opportunity of observation upon a question of mental capacity, as by study and experience they become experts in the matter of bodily and mental ailments.” 80 N.C. at 206. On appeal the court found no error. In Peterson, two physicians who had not observed the testator testified for the caveators, and two physicians who had observed the testator testified for the propounder. At the request of caveators the trial court had instructed the jury in part that “the law attaches peculiar importance to the opinion of medical men upon the question of mental capacity. . . .” 136 N.C. at 23, 48 S.E. at 565. In finding error, the court stated: “It would seem that the safer rule would be to permit the entire evidence to go to the jury to be weighed and considered by them in the light of all the other evidence upon the question.” 136 N.C. at 26, 48 S.E. at 566. In Holland, the trial court had instructed the jury in part that it could give some importance to the opinion of the physcian witness, “ ‘perhaps more than you would to another witness, because he is a doctor. . . .’ ” 16 N.C. App. at 399, 192 S.E. 2d at 99. On appeal it was held that the instruction was an expression of opinion in violation of G.S. 1A-1, Rule 51(a). We conclude that though Flynt has not been expressly overruled, both Peterson and Holland reject it by implication. Dr. Adair did not have the opportunity of observing the testatrix for several months prior to her execution of the will. Lay witnesses observed her on and near the day of execution. Under these circumstances the rejection of the requested instructions by the trial court was not error.

No error.

Judges Britt and Hedrick concur.