Wood v. Michigan Millers Mutual Fire Insurance Co.

Annotate this Case

90 S.E.2d 310 (1955)

243 N.C. 158


No. 397.

Supreme Court of North Carolina.

November 23, 1955.

*311 Deal, Hutchins & Minor, Winston-Salem, for defendant appellant.

Buford T. Henderson, Winston-Salem, for plaintiff appellee.

BARNHILL, Chief Justice.

While defendant offered evidence, and there were facts and circumstances tending to show, that the pressure of the rain water against the east foundation wall caused the damage, we cannot say that plaintiff's testimony, if accepted by the jury, is insufficient to support a verdict for the plaintiff. The credibility of the testimony *312 was for the jury. Hence, there was no error in the order of the court overruling the motion to dismiss as in case of nonsuit.

The admission of the opinion of lay witnesses who visited the scene after the hurricane had passed must be held for error. It was permissible for them to describe to the jury the conditions as they found them at the time they visited the scene, but it was improper to permit them to make deductive conclusions from what they saw and observed. These conclusions, in the form of opinions, relate to the ultimate fact to be determined by the jury. To allow them to state what in their opinion caused the damage amounted to nothing more than permitting them to decide the issue which was submitted to the jury, and they were thus permitted to invade the prerogative of the jury.

Opinion evidence is inadmissible whenever the witness can relate the facts so that the jury will have an adequate understanding of them, and the jury is as well qualified as the witness to draw inferences and conclusions from the facts. Stansbury, Evidence, 232, sec. 124. A witness will not be allowed to give his opinion on the very question for the jury to decide. Stansbury, Evidence, 236, sec. 126.

"The witness must speak of facts within his knowledge. He cannot, under the guise of an opinion, give his deductive conclusion from what he saw and knew." Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828, 830. See also Patrick v. Treadwell, 222 N.C. 1, 21 S.E.2d 818; State v. Roberson, 240 N.C. 745, 83 S.E.2d 798; State v. Becker, 241 N.C. 321, 85 S.E.2d 327; Annotation 23 A.L.R.2d 136.

LaBris v. Western Nat. Ins. Co., 133 W. Va. 731, 59 S.E.2d 236, 239, is a case almost on all fours. There as here opinion evidence was admitted. In discussing the case the Court said in part: "At best the opinion testimony of these non-expert witnesses is highly conjectural, involves the ultimate issue in the case, and tends to invade the province of the jury." What was there said is applicable here.

As to the instructions of the court on what constitutes direct damage by windstorm, see Miller v. Farmers Mut. Life Ins. Association, 198 N.C. 572, 152 S.E. 684.

For the reasons stated there must be a

New trial.