Quimby v. Greenhawk

Parke, J., delivered the opinion of the Court. Reuben N. Greenhawk executed a purporting will on February 8th, 1932, whereby, after directing the payment of all his debts and funeral expenses and that his executor provide a fund for the perpetual care of the family burial lot, he gave and devised all his real and personal property to Emma G. Quimby. The testator died on March 3rd, 1932, and his will was produced before the Orphans’ Court of Talbot County on March 5th, 1932, by its custodian and executor, Edward T. Miller; and the three subscribing witnesses proved the execution of the will, which was not admitted to probate because notice had been given that a caveat would be filed. The petition and caveat were filed a week later by the three brothers of the testator, William Thomas Greeiihawk, John W. Greenhawk, and Charles H. Green-hawk, who were his nearest next of kin and heirs at law.

The caveat was based upon the grounds that the will was not duly executed; that the testator was mentally incompetent, and did not know or understand the contents of the will; and that the will was procured by undue influence. An answer was filed by the beneficiary and the executor, ³³⁸ and, finally, six issues were framed by tbe Orphans’ Court, and the record transmitted to the Circuit Court for Talbot County. The case was 'tried before the court, sitting as a jury, and on the fifth and sixth issues of undue influence and of fraud or duress the verdict was in favor of the caveatees; but on the first issue, which was the testamentary capacity of the decedent; and on the second issue, which was whether the purporting will was signed by the decedent, or by any one for him in his presence and at his expressed direction; and on the third issue, which was whether the paper writing was properly attested and subscribed by two or more credible witnesses; and on the fourth issue, which was whether the decedent knew or understood the contents of the purporting will at the time of its execution, the several verdicts were in the negative and, so, with the caveators. The pending appeal brings up for review ten exceptions taken to the rulings of the court on the evidence, and the eleventh exception, which is to the adverse rulings on the prayers.

Eight of the exceptions arising on objections to testimony relate to the form of hypothetical questions submitted to medical experts, and it will be convenient to consider these first. It has been the practice in this jurisdiction for some years to permit an expert to express his opinion upon facts in the evidence which he has heard or read, upon the assumption that these facts are true. Jerry v. Townshend (1856), 9 Md. 145, 159 ; Baltimore City Pass. Rwy.

Co. v. Tanner, 90 Md. 315 , 45 A. 188 ; Berry Will Case, 93 Md. 560, 579 , 49 A. 401 ; Owings v. Dayhoff, 150 Md. 403 , 151 A. 240 ; Rickards v. State, 129 Md. 184, 190 , 98 A. 525 ; Daugherty v. Robinson, 143 Md. 259 , 122 A. 124 ; Gordon v. Opalecky, 152 Md. 536 , 137 A. 299 ; Balto. & O. R. Co. v. Brooks, 158 Md. 149 , 148 A. 276 ; Baltimore v. State, 122 Md. 113 , 103 A. 426 . In other words, while the better practice is to incorporate in a hypothetical question all the facts on which an- expert witness is asked to give an opinion, yet the hearing or reading of the testimony is accepted as an imperfect substitute ³³⁹ for the formal hypothetical question in furnishing the data for inference by the expert witness. Furthermore, since the inference or conclusion rests upon certain premises of fact, these premises must be true; and, in order that premises considered may be known, and their truth or falsity be ascertained by the jury or the court, these premises must be expressly and particularly stated. For this reason the admissibility of a hypothetical question primarily depends upon whether it furnishes the tribunal with the means of knowing upon what premises of fact the conclusion is based.

The problem is largely left to the sound discretion of the trial court, but clearly it is improper to admit an expert’s inference or conclusion upon the reading or hearing either of all or of a specified part of the testimony in the case, if such whole or part of the testimony, so submitted as the premises for an inference or conclusion, is conflicting in the important assumptions of factual truth to be made. Wigmore on Evidence (2nd Ed.), sec. 681; 1 Greenleaf on Evidence (16th Ed.), secs. 441K, 441L. The reason is that, when there is a conflict of testimony on material facts, no conclusion can be reached by the expert witness until he has first determined which of the facts in conflict are true, and, in forming his judgment on what should be the premises from which he draws his inference or conclusion, he must necessarily invade the province of the jury and pass on the credibility of witnesses and the weight of evidence. As was said in Jerry v. Townshend, 9 Md. 145 : “It is clear that you. cannot ask a witness, an expert, his opinion, as to the state of a party’s mind, upon the evidence submitted to the jury.

To do so would be to transfer the functions of the jury to the witness, and would permit him to decide upon the very fact at issue, and thus to control the verdict of the jury. It is equally clear, on the other hand, that you may ask such a witness his opinion upon a state of facts, hypothetically put, based upon the evidence, and this is in fact the proper way to submit such questions to a witness.” In Woodbury v. Obear, 7 Gray (Mass.), 467 , ,a medical witness was asked whether, having heard all the ³⁴⁰ evidence, he was of opinion that the testator was of sound mind. The court held that the question was not proper in that form, stating: “This would be especially irregular where the evidence is conflicting, because it puts it in the power of the expert to give an opinion upon the credibility of the testimony and truth of the facts, which is purely a question for the jury, and then upon the value and efficacy of the facts and circumstances-, in his opinion thus proved, upon the question of soundness of mind.” Connor v. O’Donnell, 230 Mass. 39 , 119 N. E. 446 ; Burnside v. Everett, 186 Mass. 4 , 71 N. E. 82 ; Damm v. State, 128 Md. 665, 676 , 97 A. 645 ; Balto. & O. R. Co. v. Thompson, 10 Md. 76, 83, 84 ; Walker v. Rogers, 24 Md. 237, 243, 244, 247 ; Baltimore & L. Turnpike Co. v. Cassell, 66 Md. 419 , 7 A. 805 ; Dexter v. Hall, 15 Wall. 9 , 21 L. Ed. 73 . Although a medical expert may base his opinion upon the facts testified to by another expert, the witness may not have submitted to him, as a part of the facts to be considered in the formation of his inference and conclusion, the opinion of such other expert on all or some of the facts to- be considered by the witness from whom the answer is sought.

To do so would destroy the premises of fact upon which an expert, by reason of his own peculiar technical skill and knowledge, is permitted to give in evidence his own inference and opinion. Globe Indemnity Co. v. Reinhart, 152 Md. 439 , 137 A. 43 ; McComas v. Wiley, 134 Md. 572, 580 , 108 A. 196 ; Williams v. State, 64 Md. 384, 394 , 1 A. 887 ; Kelly v. Kelly, 103 Md. 548, 554 , 63 A. 1082 ; Coughlin v. Cuddy, 128 Md. 76, 83 , 96 A. 869 ; Harris v. Hipsley, 122 Md. 418, 433, 434 , 89 A. 852 ; and see annotation in 82 A. L. R. 1460-1492. It is by these rules of evidence that the propriety of rulings on the admission of testimony is to be determined, and these eight exceptions will be first considered. Without excluding the previously expressed opinion of two lay witnesses, Dr. Joseph D. Stout, a medical expert, who had heard or had read to him all the prior testimony, was asked, during the taking of the evidence in chief of the ³⁴¹ caveators, to assume the truth of all the testimony which he had heard, and to give his opinion as to whether the decedent was mentally incapable of making a valid deed or contract on February 8th, the day the purporting will was made.

The caveatees excepted, and the admission of tho opinion of the witness that the decedent was so incapable is the ruling presented for review by tbe first exception. Under similar conditions, with the addition that testimony upon which their conclusions were based did not exclude, but included, not only the opinions of the two lay witnesses, but also the opinion of each preceding medical expert, Dr. William T. Hammond and Dr. William Y. Palmer, both' medical experts, gave like answers, and the reception of this testimony constitutes the second and third exceptions. The fourth bill of exception arose during the course of the testimony of Dr. Harry M. Stein, another expert witness. Dr. Stein had visited the decedent on February 9th, the day after the execution of the assailed document, at the request of Dr. Merritt, the attending physician.

After Dr. Stein had described the patient’s physical and mental condition as found by him on this professional call, he, in response to- a direct inquiry, testified that the decedent did not possess on February 8th the mental capacity to make a valid deed or contract. Dr. Stein was then withdrawn, and, after the three named experts, who had never seen the decedent, had testified and expressed a like conclusion, Dr. Stein was recalled, and, after proving that he had heard all the testimony taken to that point, had put to him this interrogatory: “From your own findings and assuming to be true the testimony that has been adduced, have you an opinion as to whether Mr. Reuben Y. Greenhawk was competent to make a valid deed or contract on February 8th, 1932?” He stated that his opinion was that the decedent was not able. The admission of this answer is the ground of the fourth exception. The term “findings” is not accurate, because it included whatever the witness might have discovered in his examination, and, therefore, something material which he might not have disclosed in his testimony; but, confining the mean ³⁴² ing of the word to the prior narration by the witness of the condition of the decedent, there was nothing between the witness’ former statement of mental incapacity and the putting of the new question that had been admitted in evidence) except the testimony of the three medical experts who had never seen the party.

If-the witness had been asked to combine what he had personally described in evidence as the condition of the decedent on the day after the signing of the document in question with the facts given in evidence by the preceding witnesses with respect to the condition of the decedent on the day of the signing and theretofore, and express an opinion on this whole testimony, there would have been no basis for an objection, provided the question propounded had excluded from the testimony to be weighed the preceding opinions of the lay and expert witnesses that had been given in evidence. The failure of the question to make this exclusion puts this fourth exception in .the same class as the first three exceptions. Since all of these four bills of exceptions show the common error of including in the evidence submitted to the expert witnesses the opinion of both lay and expert witnesses on the identical inquiry of the decedent’s mental capacity, there was error in permitting the testimony