
    Railroad Co. v. Brundige et ux.
    
    
      (Nashville.
    
    December Term, 1904.)
    1. CONTRACTS. Mental capacity to make, is question for court and jury to determine.
    The degree of mental capacity -which the party whose act is called in question must have, to enable him to make a valid contract, is a question of law for the court to decide and whether siich party has the required degree is a question of fact to he found by the jury from all the evidence; and the opinions of the witnesses are not competent evidence to determine either point.
    Cases cited and approved: Gibson v. Gibson, 9 Yerg., 329; Kirkpatrick v. Kirkpatrick, 1 Tenn. Cas., 258; Wisener v. Maupin, 2 Bax., 358; Brown v. Mitchell (Tex. Sup.), 36 L. R. A., 64; Runyon v. Price (Ohio), 86 Am. Dec., 462; Van Zandt v. Ins. Co., 14 Am. Rep., 223; Walker v. Walker’s Executor, 34 Ala., 469; White v. Bailey, 10 Mich., 159; May v. Bradlee, 127 Mass., '414.
    Case cited and distinguished: Poole v. Dean, 152 Mass., 589.
    3. EVIDENCE. Opinions of physicians inadmissible to determine contractual capacity. Case in judgment.
    The mental capacity of the female plaintiff to execute a contract compromising the litigation, was practically the sole point in issue. There was proof showing that the compromise contract was executed by the wife at the request and in the presence of her husband. Evidence was offered by the defendant to show the existence of contractual capacity, to rebut which plaintiff offered the testimony of two physicians, which was admitted over apt objections of defendant, that in their opinion plaintiff was not in a condition to make a contract. Other facts shown made the case critically close upon the determining issue.
    
      
      Held-. That the admission of the opinions of the physicians as to the mental capacity of the plaintiff, which was a question to he determined by the court and jury, was prejudicial error and ground for reversal.
    See cases cited and approved under headnote 1.
    PROM FRANKLIN.
    Appeal in error from the Circuit Court of Franklin County. — S. D. McReynolds, Judge.
    Claude Waller, Lynch & Lynch and W. B. Lamb, for Railroad Company.
    Estill & Littleton, for Brundige et ux.
   Mr. Justice Shields

delivered the opinion of the Court.

Mrs. W. S. Brundige, her husband joining her, sued the Nashville, Chattanooga & St. Louis Railroad Company for the recovery of damages for injuries sustained by her in a collision on its road; she being .a passenger on one of the colliding trains.

The railway company pleaded not guilty and accord and satisfaction; the last plea being based upon a compromise made with Mrs. Brundige June 14, 1902, two' days after the accident. Mrs. Brundige replied to this plea that at the time the compromise was made she was suffering from a profound mental shock and nervous prostration, caused by her injuries, and was incompetent to make a valid contract, and repudiated the settlement and tendered back the money paid her. Issue was joined upon this replication.

The railway company upon the trial did not seriously controvert that Mrs. Brundige was injured through its negligence, and the contest was narrowed to the question of whether she had sufficient mental capacity when the compromise was made to make a valid contract. There were verdict and judgment for the plaintiff below, and the railway company brings the case here, and assigns as error that there is no evidence to support the verdict; that the damages adjudged are excessive, and the result of prejudice, passion, and caprice upon the part of the jury; and the admission, over objection, of certain testimony of the plaintiff’s witnesses Dr. Zur-mehly and Dr. Spiller, to the effect that she did not have sufficient mental capacity to transact business and make a contract.

The determination of error last assigned will be decisive of the case.

The questions propounded to these witnesses, and their answers, are as follows:

Dr. Zurmehly:
“Q. State whether or not, at the time you speak of seeing Mrs. Brundige, you would say that she was in any condition to transact business or make a contract?
“A. I should judge not. Of course, that is a matter of opinion.”
Dr. Spiller:
“Q. In your opinion, was she in a condition, when you saw her on the second visit you refer to, on June 13th, to make a contract or to transact a business matter?
“A. I should judge not.”

Counsel for the railway company objected to this testimony on the ground that it was the conclusions of the witnesses, and the question of plaintiff’s mental capacity to make a contract or transact business was not a matter for the witnesses to pass on, but a question for the court and jury to determine. These objections were overruled, and the testimony permitted to gO' to the jury.

- This was error. The testimony was clearly incompetent, and should have been excluded. The degree or quantum of mental capacity which the party whose act is called in question must have, to enable him to make a valid contract, is a question of law for the court to ‘decide, and whether said party has the required quantum is a question of fact to be found by the jury from all the evidence; and the opinions of witnesses are not competent evidence, in cases of this kind, upon either point. The mental capacity of the plaintiff to contract was also the direct point — practically the sole point — to be decided by the court and jury; and the admission of this testimony was, in effect, a substitution of the opinion of tbe witnesses upon both tbe law and tbe facts of tbe case for tbat of tbe triers provided by law to determine them. This cannot be done. Tbe testimony of witnesses must relate to tbe facts, and it is tbe province of tbe court to determine tbe law, and the jury tbe ultimate facts. Witnesses, in cases involving mental capacity, after stating tbe facts within their knowledge, may give their opinion, formed from those facts, of tbe soundness or unsoundness of tbe mind of tbe party in question, but cannot be permitted to express an opinion whether such party bad sufficient mental capacity to make a contract or execute a will, as the case may be. There seems to be but little or no conflict in tbe authorities upon this subject.

In Gibson v. Gibson, 9 Yerg., 329 — a contested will case — the witness was asked: “Whether from the situation in which be saw the old man on that morning, and from the facts be bad just stated to the jury, be believed the old man was then in bis senses and capable of making a will?” This court, in approving the action of the trial judge sustaining an objection to the question, said: “The latter part of the question — capable of making a will — as” it involved a question of law and fact and the very question to be determined by the jury, was entirely illegal.”

In Kirkpatrick v. Kirkpatrick, 1 Tenn. Cas., 258, it is said: “Tbe court erred in permitting certain witnesses to state their opinion as to tbe testator’s mental capacity to malte a reasonable disposition of his property. This was a mixed question of law and fact, and tbe very inquiry to be determined by tbe jury upon tbe facts.”

And again, in tbe same case, it is said: “Tbe witness cannot be asked a question, tbe answer to which involves a matter of fact, as whether tbe testator is capable of making a will.”

This was also" held in the later case of Wisener v. Maupin, 2 Baxt., 358.

Tbe rule is well and correctly stated by M'r. Pritch-ard, in bis valuable work on Wills and Administration, section 106, in these words: “Attesting witnesses, and they only, are permitted to give their opinions, merely, without stating facts upon which they are based. But neither an attesting witness, .nor any other, can be asked or allowed to state whether or not the testator was capable of making a will, or, what is the same thing, whether he was of disposing mind and memory. That involves a question of law for the court to settle, as to the quantum of mental capacity necessary to enable a person to make a legal disposition of his estate.”

In the well-considered case of Brown v. Mitchell (Tex. Sup.), 31 S. W., 621, 36 L. R. A., 64, in holding that witnesses cannot be permitted to give their opinion of the mental capacity of a person to make a will or contract, the supreme court of Texas says:

“The negative of this proposition is that no witness, whether he be a subscribing witness, an expert, or a nonexpert, wll be permitted, over objection, to state bis opinion of tbe capacity of tbe testator or tbe maker of a contract to make sucb instrument when tbe opinion assumes tbe shape and has tbe effect of being an opinion upon tbe legal capacity of tbe party in question.”

Other authorities to the same effect are Runyan v. Price (Ohio), 86 Am. Dec., 462; Van Zandt v. Life Insurance Company, 14 Am. Rep., 223; Walker v. Walker’s Ex’r, 34 Ala., 469; White y. Bailey, 10 Mich., 159; 1 Greenleaf on Evidence, sec. 440.

All tbe cases from which we have quoted and have cited, it is true, involved tbe testamentary capacity of testators, but tbe principle upon which they were decided applies with equal force to cases involving the mental capacity of parties to contract. The testimony, whether it relate to a will or contract, is the opinion of the witness of the capacity of the party in question to do the act attacked as invalid, and which is tbe direct point in issue, and to be determined by the court and jury. -In both cases a mixed question of law and fact is involved, and tbe admission of sucb evidence is to substitute tbe opinions of witnesses for tbe judgment of tbe court and jury upon these matters. The case of Bruce v. Beall, 99 Tenn., 303, 41 S. W., 445, in which the judgment of the trial court was reversed for error in permitting an expert witness to give bis opinion on the matter to be decided by the jury, is also in point. It is there said: “While the general rule is that witnesses must speak to the facts, yet, upon questions of skill and science, men who have made the subject-matter of investigation the object of their particular study are competent to give their opinion in evidence. But they will not be permitted to state their opinion upon any point the jury has to decide. Deductions from facts belong to the jury, and, when the examination extends, so far as to substitute the opinion of the witness upon the very issue in controversy for that of the jury, the province of that tribunal is unwarrantably invaded.”

The case chiefly relied upon by the defendants in error to sustain the action of the trial judge in admitting this testimony is that of Poole v. Dean, 152 Mass., 589, 26 N. E., 406. While there is in one part of the opinion a statement that tends to do this, yet, when the entire opinion is considered, it is not in conflict with our cases,- and the case of May v. Bradlee, 127 Mass., 414, is clearly in accord with them.

This testimony was clearly prejudicial to the plaintiff in error. The' compromise pleaded had been made by Mrs. Brundige in the presence and by the request of her husband, and acquiesced in by them for some time; and there was much in their testimony tending to show that Mrs. Brundige had the capacity to make the contract, and fully understood and assented to it, which, with other potent facts testified to by the witnesses for both parties, made the case critically close upon this issue for the defendants in error. The incompetent testimony had been called sharply to the attention of the jury by the objection made to it and overruled, was upon the direct point being tried, and necessarily must have bad great weight with the jury'in arriving at its ver- ■ diet.

It is not necessary to' pass upon other errors assigned, as for this one the case must be reversed and remanded for a new trial.  