Notes of Cases on Own Intent, etc.

14 State Rep., 154 (in an action for malicious prosecution defendant may testify that he was not actuated by malice). Hahlo v. Grant, 31 State Rep., 919; s. c. 10 N. Y. Supp., 168 (the seller's clerk may testify that in ordering the goods purchased to be delivered, he relied partly on the purchaser's statements as to his financial condition and partly on a commercial agency's report). People v. Moore, 50 Hun, 356; s. c. 20 State Rep., 1 (on an indictment for an assault, evidence as to the manner in which words spoken by defendant at the time of the assault were understood by the party assaulted is admissible). Lally . Emery, 54 Hun, 517; s. c. 28 S ate Rep., 127; 8 N. Y. Supp., 135 (in an action for a slander charging a crime, defendant may testify in mitigation that he did not intend to charge a crime). Wilcox v. Joslin, 32 State Rep., 423; s. c. 10 N. Y. Supp., 342 (a witness cannot testify as to what he meant by a certain sworn statement). Fox v. Fort Edward, 48 Hun, 363; s. c. 16 State Rep., 303; affd. without opinion in 121 N. Y., 666 (in an action for personal injuries, upon cross-examination the plaintiff testified that he had walked in the street before the accident and not on the sidewalk. Held, that it was proper to let him state on re-direct examination that he returned to the sidewalk because he had seen a foot-passenger knocked down in the street by a passing team). North Carolina: Wolf v. Arthur, 112 N. C., 691 ; s. c. 16 Southeast. Rep., 843 (upon an issue as to whether a deed was executed in fraud of creditors, one of two grantees as a witness cannot be asked if the trade was a bona fide transaction since although he may testify as to his own good faith, he cannot testify to that of the other parties). Nixon v. McKinney, 105 N. C., 23; s. c. 11 Southeast. Rep., 154 (where it is material to know whether a grantor acted in good faith in making a deed, or the motives of the grantee in taking the benefit of the conveyance, either may testify as to his own intent in the transaction). Texas: Berry v. State, 30 Tex. App., 423; s. c. 17 Southwest. Rep., 1080 (upon the trial of an indictment for an aggravated assault in striking a boy, defendant may testify as to his object and purpose in striking him). Robertson r. Gourley, 84 Tex., 575; 19 Southeast. Rep., 1006 (upon the issue as to whether a sale was fraudulent as to seller's creditors, the seller may be asked if in making the sale he was trying to put is property out of the reach of anyone; s. p. Schmick v. Noel, 72 Tex., 1). Baldridge & C. Bridge Co. v. Cartrett, 75 Tex. 628; s. c. 13 Southwest.. Rep., 8 (to disprove ccntributory negligence in not jumping when his team was backing off a bridge, plaintiff may testify that he looked around and saw a railing and thought it was sufficiently strong to stop the team). Kansas, etc., R. Co. v. Scott, 1 Tex. Civ. App., 1; s. c. 20 Southwest. Rep., 725 (in an action in which the value of a railway pass repudiated by defendant was an element of damage, plaintiff cannot testify as to the probable number of trips he would make over the road before the pass would expire). Smith e. Sun Pub. Co., 50 Fed. Rep., 399 (in an action for libel a witness cannot testify as to whom in his opinion the article applies, where it is ambiguous, but after stating that he knows to whom it applied he may state the facts and circumstances to show to whom it did apply).

Notes of Cases on Own Intent, etc.

Washington: Lyts v. Keevey, 5 Wash. St., 606; s. c. 32 Pacific Rep., 534 (the maker of a note cannot testify, for the purpose of showing that the consideration for the note was illegal, that he supposed there was a criminal relation between his wife and the payee, except as preliminary to evidence showing the reasons for his supposition). West Virginia: State v. Evans, 33 W. Va., 417; s. c. 10 Southeast. Rep., 792 (one accused of murder may testify as to his own feelings when the fatal act was committed). Wisconsin: Holtz v. State, 76 Wis., 99; s. c. 44 Northwest. Rep., 1107 (upon a trial for murder defendant may testify that he went to the place where the homicide was committed for the purpose of getting a girl away, but cannot state the character of the place).

Slocovich v. Orient Mut. Ins. Co., 108 N. Y., 56.

SLOCOVICH v. ORIENT MUTUAL INSURANCE CO. New York Court of Appeals, 1887.

[Reported in 108 N. Y., 56.]

It is for the judge at the trial to determine whether a witness is competent to testify as an expert.

The decision of a trial judge as to whether a witness, offered as an expert, had those qualifications, is not subject to review in the Court of Appeals, where it appears from the preliminary examination of the witness that it was a fair matter for the judgment of such trial judge.

Plaintiff sued to recover upon a marine policy. The facts material to the ruling fully appear in the opinion.

At Trial Term, judgment was entered for plaintiff upon a verdict.

The General Term of the Court of Common Pleas affirmed the judgment, without passing on this question.

an

The Court of Appeals affirmed the judgment. EARL, J. [after stating the facts involved]: There was issue upon the trial as to the value of the vessel at the time of her insurance and of her destruction soon thereafter by fire; and several experts were called and testified upon both sides, as to her value, who varied widely in their judgments. Among the witnesses called on the part of the defendant was Francis A. Martin, who testified that he was a marine surveyor; that he had been engaged in that business altogether twenty-five years; that he had followed the sea six or seven years and had been in command of a vessel; that his business had led him to be familiar with the market-values of vessels in the port of New York for ten years; that in his regular business he had been called upon to value vessels, principally by adjusters of aver

Slocovitch v. Orient Mut. Ins. Co., 108 N. Y., 56.

ages; that he knew the ship Zorka and had been on board of her a good many times, but not within five or six years. He stated, in answer to a question that he thought he was able from his experience and personal knowledge, and the personal examination he made of her, to form an opinion as to her value in 1883. He was then asked this question: "What, in your judgment, judging from your personal knowledge of the vessel, gathered from your personal observation, and your knowledge of the ordinary results of wear and tear in ordinary use, was the market value in the port of New York of the ship Zorka in the month of April, 1883?" This question was objected to by the plaintiff and excluded by the court, on the ground, as we must assume from the record, that the witness did not have sufficient knowledge of the vessel to testify as to her value at the time she was burned. It will be observed that the witness was asked for his judgment, based solely upon his personal knowledge. It was for the trial judge to determine in the first instance whether the witness was competent as an expert to testify to the value of this vessel. He had not seen her for five or six years, and knew nothing about her condition at the time of her destruction. It did not appear what her condition was at the time he last saw her, and it appeared that subsequently to that time, and after the year 1880, the plaintiffs had expended at least $7,000 in repairing her. Under such circumstances we cannot say that the judge committed any error in excluding the testimony. If the evidence had been received, it certainly would not have been entitled to very much weight with the jury. While it would not, we think, have been erroneous to receive and submit the evidence to the jury for what it was worth, we cannot say, as matter of law, that the judge exceeded the bounds of a reasonable discretion in holding that the witness was not qualified as an expert to give an opinion as to the value of the ship at the time she was burned. The rules determining the subjects upon which experts may testify, and prescribing the qualifications of experts, are matters of law, but whether a witness offered as an expert has those qualifications is generally a question of fact to be decided by the trial judge. And it has been held that his decision in reference thereto is not review

Gregory v. Fichtner, 27 Abb. N. C., 86.

able in an appellate court (Searle v. Arnold, 7 R. I., 582; Dole v. Johnson, 50 N. H., 455; Jones v. Tucker, 41 id., 546; Wright v. Williams, 47 Vt., 222). Without going the full length of these cases, it is sufficient to hold here that the decision of the trial judge in such a matter should not be held to present an error of law, and on that account be reversed, unless it is against the evidence or wholly or mainly without support in the facts which appear. Here, we think, it was a fair matter for the judgment of the trial judge whether this witness had the requisite knowledge and qualifications to give an opinion as an expert as to the value of this ship; and hence we think that judgment is not the subject of review here.

[Other rulings are here omitted.]

All the judges concurred, except ANDREWS and PECKHAM, JJ., dissenting.,

Judgment affirmed.

NOTE. To similar effect: Stillwell Mfg. Co. v. Phelps, 130 U. S., 520; Perkins v. Stickney, 132 Mass., 217; Sorg v. First German Congregation, 63 Penn. St., 156.

GREGORY v. FICHTNER.

New York Common Pleas, General Term; May, 1891.

[Reported in 27 Abb. N. C., 86.]

Upon an appeal from a judgment of affirmance by the general term of the City Court of New York of a judgment entered upon a verdict, the Court of Common Pleas has no jurisdiction to review the weight of evidence, but is confined to a consideration of the errors of law apparent on the record.

Proof that defendant had possession of plaintiff's property as bailee, and that when plaintiff demanded it of him he gave her a push and said, "Go away from here; whatever I have I will keep," furnishes sufficient evidence of demand and refusal to establish a conversion. Where property is deposited with another for an indefinite period, the Statute of Limitations does not begin to run against an action by the owner for its conversion, until a demand and refusal.

A plaintiff suing for the conversion of property by the defendant's testator, is not incompetent under Code Civ. Pro., § 829, to testify to the value of the property.