Citation Numbers: 5 Daly 79
Judges: Daly
Filed Date: 2/15/1874
Status: Precedential
Modified Date: 2/5/2022
There are three classes of cases in which the opinions of witnesses may be given in evidence: First, on questions of skill, science, or trade, where the witnesses are experts; second, on questions of identity, as of persons, handwriting, and the like; and third, on questions concerning the condition and situation of persons, things, or places, where, from the nature of the subject to be investigated, it cannot be described in language so as to enable persons not eye-witnesses to form an accurate judgment in regard to it (De Witt v. Barly, 17 N. Y. 342; People v. Eastwood, 14 N. Y. 566 ; Trelawney v. Coleman, 2 Stark. 191; Jameson v. Drinkald, 12 Moore, 148; Gibson v. Gibson, 9 Yerg. 329; McKee v. Nelson, 4 Cow. 355).
The questions put to the witnesses Smith and Daniels, as to whether, in their judgment, a conversation carried on in an ordinary tone of voice between two persons, at the vaults on defendant’s premises, could be heard by a person standing at the locality formerly occupied by the tool house—not involving any question, 1st, of science, skill, or trade; nor, 2d, of identity—must, if properly allowed by the referee, fall within the third class of cases above mentioned, where opinions may be given in evidence. This class is certainly large and difficult of definition and limitation; but, it seems to me, if extended to the utmost reasonable bounds, cannot cover the questions above referred to. The opinion of the witnesses Smith and Daniels were offered by the plaintiff to show that a conversation alleged to be heard by Kemp, a witness for defendant, could not have been heard by him, if such conversation took place between plaintiff and defendant at the spot he testified it did, and he stood at the time in the place he said he was. Meither Smith nor Daniels were present at the time and place of the alleged conversation. They went to the place after-wards and examined it, and Daniels measured the distance from the vaults to the former locality of the tool house. The referee refused to allow the witnesses to state what experiments they made then and there to test whether a conversation could be heard at one spot, if carried on at the other; but allowed them to give their opinion as to whether such a conversation, if
And so in cases where the question arises as to the state of an unproducible portion of real evidence, as the appearance of a building, or of a public document which the law will not allow to be brought from its repository, the opinions of witnesses may be given (Best on Ev. § 517, 5th ed.)
In all these cases it will be seen that the witness giving an opinion has seen the very thing, person, or occurrence concerning which the opinion was admitted. In every case the facts on which the opinion was founded were given in evidence, and the opinion was then received ex necessitate as the only means of arriving at a just conclusion. The law does not favor the admission of evidence of opinions but from necessity alone, and the witness must state the facts on which he bases it. The court is entitled to both the facts and the opinion—the facts in order to judge of the value of the opinion, and the opinion in order to have under oath the judgment of the eye-witness on the occurrences within his knowledge. In this case the error of the referee consisted in, 1st, receiving as material the opinion of witnesses who saw and heard nothing of the occurrence— i. e., the alleged conversation between plaintiff and defendant, concerning which their testimony was offered; 2d, receiving as material evidence an opinion from witnesses who were not permitted to state any facts within their knowledge on which their opinion was based. He excluded from his consideration the facts, and yet received in evidence the opinion; and yet the value of that opinion could only be determined from the facts.
In this case the opinion was received as materially affecting an occurrence which the witnesses neither saw nor heard, and is not within any rule which permits opinions to be given in evidence.
The objection and exception having been duly taken by defendant, the judgment must be reversed and a new trial ordered, costs to abide the event.
Daly, Ch. J., and Loew, J., concurred.
Judgment reversed.