Abbildungen der Seite
PDF
EPUB

who have long known the person should be permitted to state that he is a negro or a white person.29

Witnesses acquainted with a person are properly permitted to testify that he did not appear more than a given age at a certain time, 30

Any witness who fully states his means of knowledge and the basis of his opinion may given his opinion as to the age of an absent person.81

§ 1046. Mental condition

Nonexperts, who testified that they had observed the conduct of a person whose mental condition was in question, and stated the facts, were entitled to give their opinion, based thereon, as to the person's sanity.s

32

Neither an expert nor a nonexpert witness may give a mere abstract statement that in his opinion a person was or was not capable of making a particular contract.33

29 Cole v. District Board of School Dist. No. 29, McIntosh County, 123 P. 426, 32 Okl. 692, Ann. Cas. 1914A, 459.

30 Bell v. Bearman, 133 P. 188, 37 Okl. 645.

31 State v. Grubb, 41 P. 951, 55 Kan. 678.

32 Conwill v. Eldridge, 130 P. 912, 35 Okl. 537; Stafford v. Sutcliffe, 103 Kan. 592, 175 P. 981; 1oward v. Carter, 80 P. 61, 71 Kan. 85; Zirkle v. Leonard, 60 P. 318, 61 Ian. 636; Order of United Commercial Travelers of America v. Barnes, 90 P. 293, 75 Kan. 720; Grimshaw v. Kent, 73 P. 92, 67 Kan. 463; Moors v. Sanford, 41 P. 1064, 2 Kan. App. 243; Baughman v. Baughman, 4 P. 1003, 32 Kan. 538; Fish v. Poorman, 116 P. 898, 85 Kan. 237.

Nonprofessional witnesses may state the results of their observation and their opinion of the mental condition of another, when accompanied by the facts upon which their opinions are based, or where an opportunity is given to test the basis of their opinions by cross-examination. Munger v. Myers, 153 P. 497, 96 Kan. 743.

In suit to cancel deed on ground of grantor's mental incapacity, nonexpert witnesses acquainted with grantor, who stated facts which they observed and on which they passed their opinion, may express an opinion as to grantor's mental capacity. Campbell v. Dick (Okl.) 176 P. 520.

A nonexpert may testify to the unsoundness of a grantor's mind, where he gives his means of observing and states the acts and conduct of grantor. Jenkins v. Jenkins, 146 P. 414, 94 Kan. 263.

Evidence of nonexpert witnesses held to show sufficient acquaintance and opportunity for observation, to enable them to form a belief as to plaintiff's mental condition and express opinions relative thereto. Farmers' & Merchants' Bank of Mountain View v. Haile, 46 Okl. 636, 149 P. 214.

33 Brown v. Brown, 152 P. 646, 96 Kan. 510.

A party is competent to testify to his own mental condition.84 A witness who, about the time of the execution of the deed in question was with the grantor and testified in regard to her acts and statements at that time, as well as on other occasions, is competent to express an opinion as to his mental capacity."

35

Where a witness is describing the manner and attitude of persons engaged in a conversation which he does not hear, it is not improper to permit the witness to characterize the action of one of the speakers as gesticulating "like he was mad," or standing with his head down "as if he was crying."

9786

The scrivener and subscribing witnesses to a will are competent witnesses as to the testator's mental condition.87

§ 1047. Physical appearances, conduct, and condition

An unprofessional witness can testify from his own observation as to what was the physical condition of a person at a given time.38 In an action against a surgeon for malpractice, nonexpert witnesses may testify to external appearances and manifest conditions observable by any one.39

It is not error to permit a nonexpert to express an opinion as to

34 In a proceeding for contempt in violating an injunction restraining the maintenance of a private asylum, evidence of a witness that screams from the cottages which she described made her nervous and disturbed her was admissible; a party being competent to testify to his own mental condition. State V. Lindsay, 116 P. 209, 85 Kan. 192.

35 Kempf v. Koppa, 85 P. 806, 74 Kan. 153.

36 White v. White, 90 P. 1087, 76 Kan. 82.

37 Durant v. Whitcher, 156 P. 739, 97 Kan. 603.

38 City of Topeka v. Griffey, 51 P. 296, 6 Kan. App. 920.

That a witness is not an expert does not necessarily render him incompetent to testify as to the bodily condition and health of persons. Ewing v. Wichita R. & Light Co., 137 P. 940, 91 Kan, 388.

In an action for damages for personal injuries, it is error to permit plaintiff to testify that, after she had examined certain bruises and injuries on her body, she knew she would be confined to her bed, and accordingly cut short a visit she was making in order to return home, though such error is not necessarily sufficiently harmful to justify a new trial. City of Hutchinson v. Van Cleve, 53 P. 888, 7 Kan. App. 676.

In an action on a benefit certificate, the neighbors, who are well acquainted with the deceased could testify that he appeared to be in vigorous health, where the corporal appearances and conduct, as indications of the inward health or lack of it, are relevant. Miller v. National Council of Knights and Ladies of Security, 103 Kan. 579, 175 P. 397.

30 Paulich v. Nipple, 104 Kan. 801, 180 P. 771; Sly v. Powell, 87 Kan. 142, 123 P. 881.

the physical ability of an injured party to work, based on obvious facts, not calling for an opinion arrived at by a process of reasoning.40

A party testifying to his pains cannot state his opinion that his injuries are permanent.*1

§ 1048. Financial condition

In an action to recover goods claimed to have been procured by the fraud of the purchaser, letters written by the vendor to parties in the vicinity of the vendee, inquiring about his financial standing, and their letters in answer thereto giving their opinions thereon, are inadmissible to show such condition.*

§ 1049. Medical and surgical practice

42

Whether a surgical operation was performed with a reasonable degree of skill, knowledge, and care, and whether the patient was thereafter skillfully and properly treated, cannot be established by testimony of those without special learning and skill as to such operations and practice.13

§ 1050. Speed

Persons of intelligence and observation may testify as to speed of a train without qualifying as experts; the lack of knowledge affecting the weight of the evidence rather than competency of the witnesses.**

It is not error to permit a witness who is accustomed to seeing trains of cars pass, and who says that he can tell whether they are

40 Creek Coal Mining Co. v. Paprotta (Okl.) 175 P. 235.

41 Shawnee-Tecumseh Traction Co. v. Griggs, 50 Okl. 566, 151 P. 230. 42 E. Rothschild & Bros. v. Hays, 59 P. 660, 9 Kan. App. 193.

C., at the request of D., made a written statement to D. as to his opinion of the financial condition of J. Held, that the statement was merely a conclusion of C. as the agent of D., and was therefore incompetent as against J. William B. Grimes Dry Goods Co. v. Jordan, 53 P. 186, 7 Kan App. 192.

43 Paulich v. Nipple, 104 Kan. 801, 180 P. 771; Sly v. Powell, 87 Kan. 142. 123 P. 881.

44 Atchison, T. & S. F. Ry. Co. v. Miles (Okl.) 170 P. 896.

The speed of a train may be shown by an ordinary witness who has given some attention to the running of trains and has a knowledge of time and distance. Atchison, T. & S. F. Ry. Co. v. Holloway, 80 P. 31, 71 Kan. 1.

Witness who testified that he did not observe or know speed of train was not qualified to testify with regard thereto. Chicago, R. I. & P. Ry. Co. v. Barton, 59 Okl. 109, 159 P. 250.

moving fast or slow by the sound, to testify that a train which he heard distinctly, but did not see, was going pretty fast.45

Where the rate of speed of an automobile is material, any person of ordinary means of observation who may observe the vehicle may estimate the rate of speed at which it was moving."

§ 1051. Damages

46

In an action for rent, plaintiff's testimony that it was his opinion that he had been damaged by the maintenance of a gambling establishment in the upper story of the leased building is not legal evidence on which to predicate his counterclaim.47

In an action to recover damages to property occasioned by the maintenance of a creamery, the admission of the evidence of witnesses as to whether, in their opinion, the stench arising from the creamery would penetrate as far as plaintiff's house, is error, there being no question of science or skill involved in the fact.48

[blocks in formation]

Damages cannot be proved by asking a witness how much a thing is, or was, damaged.**

A nonexpert witness cannot give his opinion as to the amount of damages suffered by plaintiff,5° or what damages plaintiff should recover.51

Where damages are claimed from a carrier for delay in the transportation of cattle, experienced witnesses may testify to loss of weight and decrease in value.52

45 Missouri Pac. Ry. Co. v. Hildebrand, 34 P. 738, 52 Kan. 284.
45 Miller v. Jenness, 114 P. 1052, 84 Kan. 608, 34 L. R. A. (N. S.) 782.

A person injured at a street crossing by an automobile who sees it approaching, and has frequently observed the passage of automobiles and has ridden in them, may testify as to its speed at the time of the collision. Himmelwright v. Baker, 109 P. 178, 82 Kan. 569.

47 Clarke v. Uihlein, 52 Okl. 48, 152 P. 589.

48 Stephens v. Gardner Creamery Co., 57 P. 1058, 9 Kan. App. 883.

49 Sharon Town Co. v. Morris, 18 P. 230, 39 Kan. 377; Upcher v. Oberlender, 31 P. 1080, 50 Kan. 315.

50 Atchison, T. & S. F. R. Co. v. Snedeger, 49 P. 103, 5 Kan. App. 700. 51 Atchison, T. & S. F. R. Co. v. Wilkinson, 39 P. 1043, 55 Kan. 83.

Where the court permitted plaintiff to testify as to damages sustained to the stock of goods, it was error, as he could only testify as to the facts, and not his conclusions, as to the damages. Tootle v. Kent, 73 P. 310, 12 Okl. 674. 52 Dickinson v. Seay (Okl.) 175 P. 216.

Where damages are claimed from a carrier on account of weight lost by

A pasture and cattle corrals having been injured, but not destroyed, by the right of way, it is improper for a witness to give his estimate of the amount of damages thereto. He should describe how they were injured, and their value immediately before they were injured and immediately after.53

In an action against a city to recover for the depreciation in the value of property by reason of lowering the grade of the street in front of such property, it is not error to permit a witness to testify that the property is worth a certain sum less, or one-third less, on account of the change of grade, where such witness has already testified what the value was before the grade was altered."

Where those accustomed to feeding and handling cattle can estimate with reasonable certainty the injury sustained by cattle by changing the feed given them from shocked corn to straw, cane, and like fodder, such testimony is admissible in measuring the damages against one wrongfully destroying the shocked corn.55

In proceedings to condemn a right of way, it is not competent to ask a witness how much less the farm was worth after the railroad had established its track through it, taking into consideration the damage, loss, and inconvenience, present and prospective, which may reasonably be expected to result from permanently maintaining the railroad.

cattle by negligent delay, and the exact weight at the beginning and at the end of the journey cannot be shown, persons experienced in such matters can give their opinion of the loss ordinarily resulting under such circumstances as well as of the loss in similar cases where no delay occurs. Atchison, T. & S. F. Ry. Co. v. Watson, 81 P. 499, 71 Kan. 696.

53 Ottawa, O. C. & C. G. R. Co. v. Adolph, 21 P. 643, 41 Kan. 600.

54 City of Topeka v. Martineau, 22 P. 419, 42 Kan. 387, 5 L. R. A. 775. 55 Enlow v. Hawkins, 81 P. 189, 71 Kan. 633.

56 Chicago, K. & N. Ry. Co. v. Neiman, 26 P. 22, 45 Kan. 533.

In an appeal from an award made in a proceeding to condemn a right of way for a railroad over a highway which ran through a tract of land, it is error to permit a witness to state, over objection, what, in his opinion, was the increased burden to the fee of the land by reason of the construction of the railroad, and how much the land was depreciated in value per acre by reason of the construction and operation of the railroad. Chicago, K. & W. R. Co. v. Woodward, 29 P. 1146, 48 Kan. 599.

(976)

« ZurückWeiter »