The opinion
Garoutte, J., concurring.
While concurring in the order denying a rehearing in this case, I am unable to concur in the views of the Department holding that the question addressed to the witness upon the appearance of Holland as to his being rational or irrational was unobjectionable. At common law any one was entitled to give his opinion as to the mental condition of a party, while under the Code of Civil Procedure only intimate acquaintances are allowed to so testify. At the same time this provision should have a liberal construction, and a wide discretion as to such matters is vested in the trial court. In the present case a week’s acquaint-' anee and association of the character indicated in this record, in my opinion, furnished a foundation sufficient to support the admission in evidence of the witness’ opinion as to Holland’s mental soundness, and for this reason the evidence of which complaint was made was properly placed before the jury. . But upon any other hypothesis the question addressed to the witness, to wit, “From the appearance of Mr. Holland at that time, with reference to his being rational or irrational, what is your opinion?” is objectionable. It is held in Marceau v. Travelers’ Ins. Co., 101 Cal. 338 , that only experts and intimate acquaintances are entitled to give opinions upon this ultimate fact. And from whatever standpoint of vision you view this question it calls for the opinion of the witness. Indeed it calls for it in direct terms. A witness who is neither an expert nor an intimate acquaintance may testify as to the acts and language of the party, and no further. To say that, in your opinion, a party appears to be rational or irrational, sane or insane, is but saying in another form that from what you have seen of him you think his mind sound or *642 unsound. The distinction between the two forms of expression are too refined and attenuated to be discovered, even by the most powerful searchlight. It is but a play upon words; and if the practice of asking a question of this character be approved, all persons who have met the party, however unsatisfactory and fleeting that meeting, will be allowed to give their opinion as to his sanity, and thus the provision of the code will become useless legislation upon the statute books.
It is said in the Estate of Carpenter, 94 Cal., at page 416, that the form of question we are here considering is even more objectionable than if the ordinary and direct interrogatory had been addressed to the witness. It is perfectly apparent to my mind that it is but doing indirectly (and the indirection is hardly perceptible) what the statute and the decisions declare cannot be done directly. People v. Lavelle, 71 Cal. 351 , is the only case to my knowledge since the adoption of the codes that supports a contrary view. The case is not well considered, and no authority of any court is there cited to support the principle declared.