Opinion
No. 28072.
October 28, 1929.
1. EVIDENCE. Testimony of one of long experience in buying, selling, and shipping cattle relative to weight is admissible as expert evidence.
On the question of the weight of a cargo of cattle, testimony of one who has long experience in buying, selling, and shipping cattle is admissible as belonging to that class of proof known as expert evidence.
2. EVIDENCE. Expert testifying as to weights against record of actual weighing must have actual personal knowledge of specific object, or be furnished complete data.
Admissibility of expert testimony on issue of weights is, when offered against record of actual weighing, subject to the same limitation as other expert evidence on similar questions in similar situations, that expert witness must have actual personal knowledge of the specific object to be estimated, or there must be in evidence complete and definite data as to specific objects as to sizes, ages, conditions, and other pertinent facts essential to a dependable estimate, or fully and fairly stated to expert by way of hypothetical questions.
APPEAL from circuit court of Prentiss county. HON.C.P. LONG, Judge.
J.A. Cunningham, of Booneville, for appellant.
The witnesses offer by appellant, as experts as to weight of cattle, were qualified by showing that they had had long experience in estimating the weights of various sizes and classes of cattle, and that their experience had been supplemented by verifications in following these estimates with weights, and that each of them had been in this business for more than a decade and had estimated, handled and shipped hundreds of carloads of such cattle.
Carter v. Studdard, 79 So. 225; Leavenworth v. Hunter, 116 So. 593; Carpenter v. Wait, 11 Cush. (Mass.) 257; St. Louis, I.M. S. Railway Co. v. Dodson, 97 S.W. 523; Filley v. Billings, 42 N.W. 713; International G.N. Ry. Co. v. Mudd, 194 S.W. 960; Bennett v. Chicago, R.I. P. Railway Co., 131 S.W. 771; 3 Wigmore on Evidence, sec. 1977; Jones on Evidence (2 Ed.), sec. 1382; 11. R.C.L., secs. 8 and 9.
Ely B. Mitchell, of Corinth, for appellee.
It is the prevailing rule that the decision of the trial court as to the competency of the expert is a preliminary question lying in the discretion of the court and unless founded on some error of law, or serious mistake, or abuse of discretion, this ruling is not reversible.
1 Jones on Evidence, secs. 396, 895 and 898; White v. State, 32 So. 139; Gilla Valley Globe N.R.R. Co. v. Jones, 203 U.S. 465, 51 L.Ed. 276; 1 Jones on Evidence, sec. 369, p. 899; Forgey v. First National Bank, 66 Ind. 123; McEwen v. Biglow, 40 Mich. 215; 11 R.C.L., par. 8, p. 574; L. N.R.R. Co. v. Lowell, 70 So. 995; Ala. City G. A. Ry. Co. v. Bessiere, 72 So. 325; Hamilton v. Cranford Merc. Co., 78 So. 401; Brown v. Mobile Electric Co., 91 So. 802; Mauvaisterre Drainage District v. Wabash R.R. Co., 229 Ill. 299, 22 A.L.R. 944; Stilwell, etc., Mfg. Co. v. Phelps, 130 U.S. 520, 32 L.Ed. 1035; Montana Railroad Co. v. Warren, 137 U.S. 348, 34 L.Ed., 681; Ireland, etc., Coasting Co. v. Tolson, 139 U.S. 551, 35 L.Ed. 270; Devine v. Delano, 272 Ill. 166, Ann. Cas. 1918A. 689; Cook v. Fall River, 239 Mass. 90, 18 A.L.R. 119; 11 R.C.L., sec. 8, p. 574.
Where alleged expert witnesses had not made personal examination of cattle to be estimated or did not have independent recollection of their sizes, weights, etc., then their testimony is not admissible.
1 Jones on Evidence, sec. 375, page 919; Wheeler v. Blanken, 22 N.H. 165.
Argued orally by Ely B. Mitchell, for appellee.
There is no doubt that, upon the question of the weight of a carload of cattle, the testimony of one who has had long experience in buying, selling, and shipping cattle is admissible as belonging to that class of proof known as expert evidence; and it is not necessary, as was offered to be done in this case, that other witnesses shall be introduced to make known to the court that men of the long experience in the business aforesaid are by reason of that experience qualified to give evidence in the respect mentioned.
But, when the testimony of an expert is offered on the issue of weights against that of the record of the actual weighing on regularly used and well-accredited scales, the admissibility of the expert opinion on the question stated is subject to the same limitations as other expert evidence on similar questions in similar situations, namely: (1) The expert witness must have actual personal knowledge of the specific object to be estimated, which, in this case, is that he must have seen and examined the particular animals and substantially all of them with a view at the time of judging their weight — with this question in mind at the time, or, if not in mind at the time, then the inspection and examination must have been of such a character that all the elements of fact, in respect to the particular animals, which are involved in a correct estimation of their weight, may be distinctly recalled to memory at the time when the testimony is offered; that is to say, that, at the time of the inspection, the question in issue, which in this case is weight, was consciously made the subject of a dependable and specific estimate deliberately applied to the particular objects involved, so that the evidence, when given, may go to the particular carload rather than to shipments in general, or that his examination was of a character sufficiently thorough and impressive that he can recall the particularized facts to memory when testifying, and from the retained mental picture of the originals, once personally seen, he may look clearly again upon the specific objects and thus form his opinion upon the question at issue. Or (2) there must be in evidence complete and definite data of the said specific objects as to the sizes, ages, conditions, and other pertinent facts essential to a dependable estimate, and these facts are fully and fairly stated to the expert by way of hypothetical questions.
Neither of the two alternate essentials was sufficiently present in this case. The carload of cattle here involved had been weighed by an experienced weighmaster on modern scales, which scales, as shown by the testimony without contradiction, had been regularly tested for accuracy, and always kept in proper repair. In order to overturn by opinion evidence the record of the scales, so accredited, nothing less than the requirements above stated must be observed, and the trial judge was correct in so holding.
Affirmed.