Opinion
October Term, 1849
B.D. Noxon, for plaintiff in error.
Geo. F. Comstock, for defendant in error.
The question propounded to the witness seems to have been understood by the defendant, and by the witness himself, to call for his opinion as to the amount of damages, rather than to the fact whether damage accrued, and the character of it, as the language of the interrogatory would more properly imply. What damage accrued in consequence of feeding cattle upon poor hay, instead of good hay, called for no opinion of the witness, but for a specification of facts, as its legitimate response; and the question put to the witness in this case, was strictly legal. But the defendant and the witness understood it to call for the opinion of the latter as to the amount of damages sustained by the plaintiff, and it is very probable the plaintiff asked the question with that object in view, as he did not explain, after the specific objection was interposed by the defendant, nor repudiate the answer of the witness after it was given. We should therefore pass upon the admissibility of the question put, in the same way as we would if it had been in the following form: "How much, in your opinion, was the damage sustained by the plaintiff, in consequence of feeding the cattle upon the poor hay instead of that agreed upon?"
If the interrogatory had been propounded in the form above indicated, it would have been clearly inadmissible within all the authorities. The general rule upon the subject is, that witnesses must be confined to the communication of facts, and not opinions or conclusions which they may have formed from facts, whether known to themselves, or derived from the testimony of others. It is the special duty of the jury to draw conclusions, and not of the witness. (1 Phil. Ev. 290.) The exceptions to the general rule are confined to questions of science, trade, and a few others of the same nature, but cannot be extended to a case like the one under discussion. It is allowable for a witness who deals in, or is acquainted with, the value of cattle, or horses, to testify as to the value of such animals, because he then speaks of facts as derived from the market price of such property. In such a case, his testimony would not be opinion, it would be knowledge.
In the case before us, the witness could have legally testified to the degree of inferiority of the hay fed, to that agreed to be fed, by the defendant. He could also have testified as to the condition of the cattle when brought to the defendant's and when taken away, and to any other fact calculated to enable the court or jury to form a just opinion on the question of damages; but the mere, opinion of the witness on the amount of damage was entitled to no weight. If the witness had testified that he was acquainted with the value of cattle, I think he might have been allowed to state how much less valuable these were when taken away than when driven to the defendant's, in consequence of the inferior quality of the food. But then he should state the facts upon which he founded his valuation, so that the jury might be able to appreciate his estimate at its just value.
A few adjudged cases will show the strictness with which our courts have held to the rule which excludes the opinions of witnesses, unless they fall within the exceptions to the general rule. In Paige v. Hazard Kelley, (5 Hill's R. 603,) it was held that a witness, who testified that he was a boatman and knew the boat which had been sunk by defendant, previous to her being injured; that he had raised sunken boats, and caused them to be repaired; could not be permitted to testify what the damage would be, from the description of the situation of the boat as given by the witnesses. In Dunham v. Simmons, (3 Hill, 609,) which was an action for damages for injuring a horse by over-driving, a witness having described the condition of the horse after the injury complained of, was asked what amount of damages had been sustained in consequence of ill usage? And it was held that the question was inadmissible, if it had been objected to on the proper ground. ( See also Norman v. Wells, 17 Wend. R. 136; 13 id. 81; 23 id. 425; 4 Denio, 312; 23 Wend. R. 354.) In the case last cited, which was an action to recover damages for killing a setter dog, a majority of the court thought it barely competent to allow a witness who was acquainted with such animals and their value, to testify to such value. In the case at bar, the witness should have been confined in his testimony to questions of fact, such as the number, condition and value of the cattle kept by the defendant, the quality of hay used in comparison with that agreed for, the effect the poor hay produced upon the cattle, and thus have laid a foundation of facts from which the jury or justice could have formed an opinion of the amount of damages actually sustained. The judgment of the supreme court should be affirmed.
Judgment affirmed.