Todd v. Warner , 48 How. Pr. 234 ( 1874 )

H. G. Prindle, County Judge.

— The only question of importance that I propose to consider in this case is whether the justice erred in overruling the objections to the question put to the witness Andrews: “What is the market value of honey such as has been described per pound ?”

I have examined carefully the authorities bearing upon this question, and I am of the opinion that the justice erred in overruling the defendant’s objection to this question. It is very doubtful whether the witness could have testified to the value of the honey in question without having seen the honey. In Westlake agt. St. Lawrence Mer. Ins. Co. (14 Barb., 206), it was held that “ the opinion of a witness in respect to the value of property which he has never seen is not admissible in evidence.” In Buckhard agt. Babcock, (27 How. Pr. Rep., 406), it was stated in the opinion that “ opinions of the value of articles may be given by those familiar with the identical article or similar ones.” There is, however, another objection to the question which I think is fatal, and that is allowing the witness to swear to the value of honey such as has been described by the witnesses. In Page agt. Hazen (5 Hill, 603), it was held that “ the opinions of witnesses based upon a state of facts sworn to by others, are not proper evidence, except in matters lying peculiarly within the knowledge of experts. ” This doctrine was approved in Clark agt. Baird (5 Selden, 187), and in Scott agt. Lilienthal (9 Bosworth, 224). In the last case the court said: " A witness in order to be permitted to give his opinion of the value of any subject as an item of evidence, must be personally acquainted with it; which it cannot be presumed is possessed by people generally; or if, though possessing that knowledge, he is not personally acquainted with the subject, the particulars of it, which, it is assumed, a jury may, upon the evidence find to exist, must be stated by way of hypothesis, and the opinion confined to the hypothetical ease stated.” In the case under consideration it does not appear that the witness had heard any of the evidence in regard to the quality of the honey, except what the defendant had testified to, and it appears that a witness called by the plaintiff had given evidence in regard to the condition and quality of the honey, or a portion of it, which the witness Andrews had not heard, yet he was allowed to give his opinion of the market value of honey such as had been described, generally, without confining it to the quality as described by the defendant in his evidence which was heard by the witness. I am unable to see how this evidence can be sanctioned within the well settled rule. The most that the plaintiff could have legitimately obtained from the witness would have been an answer to the hypothetical question: “ What was second and third-class honey worth per pound ? ” The defendant had classified the honey as first and second-class honey, in his evidence, and such a hypothetical question would have been barely competent.

There are other questions in the case which it is unnecessary to consider as I think this evidence was improperly received, and for this error the judgment must be reversed.