Summary
holding that "the better rule is not to compel a witness to give his opinion as an expert against his will"
Summary of this case from Borngne ex rel. Hyter v. Chattanooga-Hamilton Cnty. Hosp. Auth.Opinion
Argued November 22, 1946
Decided February 27, 1947
Appeal from the Supreme Court, Appellate Division, Second Department, HOOLEY, J.
Meyer Kraushaar and David I. Kraushaar for appellant.
Frederick L. Weisler for respondents.
In this tax certiorari proceeding relator subpoenaed an involuntary expert witness who previously had prepared an appraisal of the property in suit for a prior owner. At the trial relator sought to elicit the witness's opinion as to the value of the premises but the witness declined to accept a fee and refused to testify, stating that he did not wish to take part in the case. The trial court ruled, over relator's objection, that, while the witness was required to testify with regard to what he had seen on the premises, he had a right to refuse to answer any question connected with his experience and judgment as a real estate expert and not as an ordinary lay witness. We find no error in this ruling.
While the question presented has not been considered in this court, the ruling of the trial court affirmed in the court below is supported by People v. Raizen ( 211 App. Div. 446, 461-462), Birch v. Sees ( 178 App. Div. 609); see, also, People ex rel. Deuel v. Shaw ( 259 App. Div. 977), Brown v. Travelers' Life Accident Ins. Co. ( 26 App. Div. 544), Tiffany v. Kellogg Iron Works ( 59 Misc. 113), People v. Montgomery (13 Abb. Prac. [N.S.] 207).
The authorities in other States are in conflict, Indiana, New Jersey and Pennsylvania following the rule in England ( Webb v. Page, 1 Car. K. 23 [1843] holding that an expert witness cannot be compelled to give expert testimony but may contract to do so for an adequate consideration ( Buchman v. State, 59 Ind. 1; Hull v. Plume, 131 N.J.L. 511; Stanton v. Rushmore, 112 N.J.L. 115; Pennsylvania Co. for Insurances v. Philadelphia, 262 Pa. 439). Cases in other States in which experts have been required to give professional opinions in evidence against their will almost without exception limit the examinations to opinions which the experts are able to give without study of the facts or other preparation ( Ex parte Dement, 53 Ala. 389, 397; Flinn v. Prairie County, 60 Ark. 204, 207-208; People v. Conte, 17 Cal.App. 771, 784; County Commrs. v. Lee, 3 Col. App. 177, 179-180; Dixon v. People, 168 Ill. 179, 191; Swope v. State, 145 Kan. 928, 933; Stevens v. Worcester, 196 Mass. 45, 56; Barnes v. Boatmen's Nat. Bank, 348 Mo. 1032, 1038; Mount v. Welsh, 118 Or. 568, 585; State ex rel. Berge v. Superior Court, 154 Wn. 144, 148; Philler v. Waukesha County, 139 Wis. 211, 215, 217; Boynton v. R.J. Reynolds Tobacco Co., 36 F. Supp. 593) . The latter rule is quite unsatisfactory. In the realms of medicine, law, science, and many other callings where highly specialized knowledge is essential, only the most eminent are competent to answer ex tempore and defend impromptu opinions upon cross-examination, but none, without reflection upon his professional ability, may confess ignorance.
We think the better rule is not to compel a witness to give his opinion as an expert against his will.
The order should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.
Order affirmed.