The foregoing opinion expresses the view of the majority of the Court upon the second exception, but not the view which I entertain. I regard the question as one of importance, not directly within the scope of any decision in this State, and not ruled, so far as I am informed, by any decision elsewhere precisely in point.
After careful consideration I am unable to adopt the view of the majority upon this exception, and believe the conclusion I have reached will commend itself to sound reason and is logically deduced from the views of our own and other Courts to which I shall refer. The question I am considering was evidently admitted upon the assumption that it fell within the general principle declared in Crockett v. Davis, 81 Md. 149, and alluded to in the opinion of the Court, and nothing that I shall here say can be properly regarded as impairing the authority of the rule there laid down or of the principle upon which it rests. This rule, as I understand it, does not imply that a physician may testify without being in possession of facts and circumstances on which to form an opinion, but that being in their possession, he is not required to state them as ordinary witnesses must do, and in my opinion this case does not fall within the operation of the rule invoked, because the record fails to show that the witness had any such knowledge of the testator as would enable him as a medical man to form a professional opinion, without which he must *Page 416 stand upon the same footing as a non-professional witness called to respond to the same question. In Townshend v. Townshend, 7 Gill, 27, the Court after speaking of the privilege of an attesting witness in this regard says, "and it is equally true,as a general proposition, that the mere naked opinions of other witnesses, not occupying the position of medical men, are inadmissible in reference to the mental capacity of a testator whose will may be controverted." The true meaning here of the words "occupying the position of a medical man," is not merely that the witness is a medical man, but that he must in order to exercise the privilege in question, have at sometime sustained the relation of medical attendant to the testator, or at least be shown to have had opportunity by adequate personal observation to form an opinion of his competency. Thus in Weems v. Weems,19 Md. 345, the Court, citing Townsend v. Townshend, supra, says, "in general, the mere naked opinions of persons notoccupying the position of professional medical attendants, as to the testamentary capacity of a testator whose will may be controverted, are not admissible." It will be observed that JUDGE COCHRAN uses the exact language of JUDGE MARTIN in the former case, except that for the words, "medical men," he substitutes "professional medical attendants," thus qualifying with evident deliberation the general expression of JUDGE MARTIN, and defining with precision the meaning of the rule. It also appears inWeems v. Weems, that "the opinion of Dr. Wilson was formed after he had examined the testator for the sole purpose of determining his mental condition;" and it also appears in the opinion of the Court in Crockett v. Davis, that the witness whose opinion was admitted was a practicing physician, "the son-in-law of the testatrix who knew her socially andprofessionally for many years."
In Waters v. Waters, 35 Md. 542, the Court said, "It ought to appear that the witness had an opportunity of forming a rational opinion"; and while these words were spoken of one who was neither a subscribing witness nor a medical expert, they are logically applicable to any witness called upon such *Page 417 a question. The rule relating to the admission of the opinions of physicians in such cases is clearly stated in Buswell onInsanity as follows: "Such opinions may be founded, first upon facts, symptoms, and circumstances, bearing upon the substance of the issue and observed by the expert witness himself; or second, upon the testimony of other witnesses declaring such facts, symptoms or circumstances, and given in his hearing, or stated to him in proper form by the interrogating party; and since it is a rule of law that the question of competency of witnesses to testify as experts is to be decided in each particular case by the Court, in the exercise of its best discretion, it follows that no rule can be laid down strictly defining the qualifications of experts in cases where the issue is upon the sanity of the party." Buswell on Insanity, secs. 250 and 256.
The physician's privilege to testify his opinion in such cases is his, because his profession makes him an expert, first, when he is shown to have had the means of adequate personal observation, and second, when hypothetical questions are properly propounded to him, or when his opinion is given upon the the facts stated by others in his hearing. Now recurring to the principle upon which the rule is declared to rest in Waters v.Waters, supra, let us apply that test to the testimony of Dr. King. As was said by this Court in Safe Deposit and Trust Co. v. Berry, 93 Md. 560, "The witness, though a physician, was not an alienist, and did not attend the testator professionally;" and it was held that the reasons given by Dr. Bell for the opinion he expressed were too inconclusive to warrant any expression of opinion as to Mr. Berry's mental capacity. In the present case, Dr. King says: "I never attended him; only prescribed for him twice, about two years ago and again during February of the present year." Thus he anticipated the Court in declaring that these two casual prescriptions did not constitute him a medical attendant, and I do not think they can be held, for the purpose of affording him the opportunity of forming a rational opinion, the equivalent of medical attendance. For what ailment did he prescribe? It may have been for an ordinary cold, or for some accidental wound *Page 418 or other injury totally disconnected with any necessity to observe his peculiarities of either body or mind, and requiring for the performance of his full professional duty, the most casual and perfunctory observation of the man. True, he also said he had known him thirty years, but how intimately or well, does not appear. We are not told how far he lived from him, or what degree of intercourse existed, if any; whether he saw him once a year — or once in ten years — whether he knew him well, as he knew his own daily companions and associates, or only as he knew those whose names were familiar, but who crossed his path rarely or never. Under such circumstances it must be incumbent upon the party offering the witness to show in some manner that he is qualified as an expert, and it cannot be presumed, notwithstanding the apparent lack of opportunity to form a rational opinion, that such opportunity did in fact exist. Looking at the matter in the light of reason alone, it not being concluded by any decision to which I have been referred, I should conclude that the question was erroneously allowed. But looking further at some of the cases elsewhere which have dealt with the principles which underlie the question, I find the conclusion I have reached is fully sustained.
In Prinsep and the East India Co. v. Sombre, 10 Moore's Privy Council Cases 232, DR. LUSHINGTON said: "The judges of the Prerogative Court where questions of insanity are so frequently mooted, have always held that the most important evidence, where medical persons have been examined, is the facts to which they depose, rather than the opinions they have formed; that Court holding it more proper to draw its conclusions from facts rather than from the inferences of others however skilled in cases of insanity; not that the opinions of medical persons are disregarded but that the facts deposed to furnish the safest evidence on which a judgement can be founded." In Commonwealth v. Rogers, 7 Metcalf, 500, CHIEF JUSTICE SHAW has thus stated the basic principle upon which such testimony is received; "Some questions lie quite beyond the scope of the observation andexperience of men in general, *Page 419 but are quite within the observation and experience of those whose peculiar pursuits and profession have brought that class of facts frequently and habitually under their consideration. It is upon this ground that the opinions of witnesses who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons are received as competent evidence, even though they have not had the opportunity to examine the particular patient, and observe the symptoms and indications of disease at the time of its supposed existence."
In Stackhouse v. Horton, (2 McCarter), 15 N.J. Eq. 202, CHANCELLOR GREEN said: "The abstract opinion of any witness, medical or of any other profession is not of any importance. No judicial tribunal would be justified in deciding against the capacity of a testator upon the mere opinion of witnesses however numerous or respectable. * * * The opinion of a witness must be brought to the test of facts that the Court may judge what estimate the opionion is entitled to."
In Commonwealth v. Rich, 14 Gray, 335, which was a case of murder, the Massachusetts Court held that "a physician who has not made the subject of mental disease a special study, is not competent to testify whether a person living in his neighborhoodand well known to him, but who had never been his patient, was competent to apply the rules of right and wrong in a state of circumstances concerning which he was under high excitement or the influence of an uncontrollable impulse."
In Hastings v. Rider, 99 Mass. 622, it was held: "On the issue whether an instrument offered for probate as a will was executed when the testator was of sound and disposing mind, the opinion of physicians who attended him professionally during a sickness in which he executed it, are admissible in evidence as to his mental capacity to make a will immediately before and after its actual execution, accompanied by statements of the symptoms and appearances on which such opinions were founded, though they were not family physicians of the testator, nor had made special study of mental disease." *Page 420 In the course of the opinion JUDGE GRAY said: "It is the duty of an attending physician to make himself acquainted with the peculiarities, bodily and mental, of a person who is the subject of his care and advice, and he has the experience which results from the performance of the same duty in other cases. He is therefore permitted to testify from his own observation to his opinion of his parent's mental capacity to make a will, in connection with the facts upon which that opinion is founded."
Through all these decisions there runs the same controlling idea, which our own Court in Waters v. Waters, supra, has formulated in the declaration that "it ought to appear that the witness had an opportunity to form a rational opinion." Suppose in the case before us that Dr. King had answered he did not consider the testator capable of executing a valid deed or contract, would it not shock any judicial tribunal to think of putting it in the power of a jury upon such testimony to decide against the capacity of a testator, and could we hesitate, if the jury in this case had so decided, to grant a new trial? We all know how controlling is the testimony of a competent and trusted physician in such cases, where it accords with the inclination of jurors, whatever direction that inclination may take. It was the perception of this paramount influence which induced this Court in Safe Deposit and Trust Co. v. Berry, supra, to disapprove a prayer, which, while not specifically saying that the opinions of the medical experts tended to prove the testator's mental incapacity, yet by directing the jury to consider them in connection with all this other evidence was regarded as giving undue prominence to these opinions. I can perceive no just ground for discrimination in our ruling upon this question because the jury sustained instead of setting aside the will. The next case presented to us might confront us with that situation, and we should so deal with the question now as we should then deal with it, if presented for the first time. To my mind it is clear that the question put to Dr. King was improperly allowed, upon the foundation disclosed in the record, and that for error in its *Page 421 admission the ruling of the Circuit Court upon the second exception should be reversed.
(Filed January 17th, 1902.)