#### Hass *v.*Marshall.

An expert witness must have a knowledge of the constituents of an article, to be permitted to testify as an expert on the question of the adulteration of the article.

While an offer of evidence to show tests made with an alleged adulterated article is admissible in evidence, as facts yet, where the offer includes testimony as to the character of the article, by one not an expert, it should be rejected.

May 14, 1888.

Error, No. 66, July T., 1887, to C. P. York Co., to review a judgment on a verdict for the plaintiff in an action of assumpsit, by Logan A. Marshall against Henry Hass, at April T., 1885, No. 48. Trunicey and Williams, JJ., absent.

The action was brought to recover the price of three barrels of whiskey alleged to have been sold and delivered to the defendant. The defendant pleaded non-assumpsit, payment, payment with leave to give special matters in evidence, and set-off.

At the trial, on January 26, 1887, the defendant claimed that the whiskey sold to him by the plaintiff was adulterated, and that, under the Act of March 29, i860, entitled “An Act to prevent recovery for the sale of adulterated liquors,” the plaintiff could not recover.

The defendant, to maintain the issue on his part, called George W. McElroy, who testified, on preliminary examination, as follows :

*“*I have made chemistry a study to the extent of knowing how to test simple matters; do not consider myself a medical expert; have had considerable experience in analyzing whiskey. I learned the different tests partly from a pamphlet on the subject of the chemical analysis of liquors, published years ago by a physician appointed in Cincinnati, Ohio, under a law of that state. I made myself acquainted with those formulas. James Black and Mr. Heinitsch, druggist and pharmacist, of Lancaster, and I had repeated meetings at his drug store and made use of those formulas in analyzing different kinds of liquors. The tests were very simple. 1. The spatula, which, being left to remain in the whiskey for some time and then taken out and tried and if it kept its clear surface, the liquor was pure, and if it was oxydized it was not. 2. The next test was that of the litmus-paper, for the purpose of ascertaining whether there *467was an acid in the whiskey or not. There is no acid in pure distilled whiskey, because, in the process of distillation, the acetic acid, which resides in the grain or fruit out of which the whiskey is made, is eliminated, or, if there is any acid in the whiskey, it has been put in after the distillation has taken place. Another test is the precipitancy of the coloring matter to the bottom of the glass, and drawing it off first at the top and then set fire to it, and if it burned, it was highly adulterated, and if not, it was very much weakened. Another test was the finding of sulphuric acid in it — it will produce a white precipitate in the bottom of the glass. Also with the arsenic; this test was the solution of something I don’t know what it was— if you put a few drops into whiskey, and if there is any arsenous acid in the whiskey, it will 'turn it blue. I made perhaps as many as twenty analysises, under the circumstances that I have related. And then I made some with (of) brandy for Benjamin Mishler, who kept an extensive liquor store in Lancaster; and I examined some brandies for Benjamin Clay — and it was terribly adulterated. I used several of those tests — the litmus paper and all that I have memtioned. I then analyzed some of Mishler’s whiskey for Ben. Clay, the same day and found both very much adulterated. Q. Have you ever acted as expert in the presence of court and jury? A. Yes, sir, in a suit against H. S. Shenk, proprietor of the ‘ Valley House.’ I made the analysis in the presence of court and jury, by the same tests that I have spoken of; the result that it was highly adulterated and not fit to drink. I analyzed some of the whiskey that was brought to my office by Cornelius LeFevre.”

The substance of the cross-examination was as follows:

“ The tests contained in the book of the Cincinnati doctor were mentioned, but I knew some tests before. We followed those directions to some extent but not entirely; I have read chemistry, and I have studied medicine for three years; that was a good while ago; cannot say that I followed it to any extent. The principal portion of my information on the subject of analyzing liquor is derived from these tests that I have just testified about. I do not know that there were more than three on brandy; they were on whiskey and one on Madeira wine; I analyzed Madeira wine repeatedly; I applied the chloride of barium test for the purpose of discovering the presence of sulphuric acid, and there was a dark precipitate in every case. I have analyzed liquors that didn’t prove to be impure — the J. B. liquor; I had a bottle of that and a bottle of Philadelphia whiskey in court, and I analyzed both; one was pure and the other impure; that was before the war; these analyses were made, principally, about that time; none since; I remembered those tests, though, and applied them to the liquor Cornelius Lefevre brought to my office; had not the Cincinnati physician’s book before me when I made these tests; you could test the purity of liquor by the blowpipe ; I have been present when it was used — the test made — the production of a metalic ring on porcelain; I am not a graduate of a college of phar*468macy or medicine; I read medicine with Dr. Isaac Winter; I never attended lectures on the subject of chemistry or medicine. There is also the milk test; you pour some sweet milk into a tumbler of whiskey and if it curdles the liquor is impure; because the acid in the milk comes into contact with the acid in the whiskey, and they get to fighting and curdle up; not so if the liquor is pure; that is just to tell whether there is an acid there.”

Re-direct: “ No Whiskey is pure that has an acid in it. Besides the knowledge I derived from the Cincinnati physician’s book, I know that, in the mere process of distillation, the acetic acid, which resides in the grain or fruit, becomes eliminated. I have been present at at least a dozen different analyses besides those I made myself; they were made by Mr. Heinitsch, who is a practical chemist.

Re-cross-examination: “ My profession is that of an attorney at law for over forty years; have practiced it constantly all that time; have never been a practicing chemist; I can’t make a quantative or qualitative analysis, nor except by the experiment I have spoken of; and the conclusiveness of these I have derived from the Cincinnati circular, and the use of the articles, and the results. I believe the results are derived from the chemical tests.”

By the Court: “ What do you know about the *conclusiveness*of the tests, independently of the pamphlet? A. I know this, sir: That the books say that the chloride of barium is a test of the presence of sulphuric acid; I know that the books say that when polished steel is placed in a liquid, such as whiskey, and comes out oxydized, there is either a vegetable or mineral impurity in the liquor. I know that litmus paper, from time immemorial, has been applied as a test of acids, and that its color is a pale blue when introduced into a liquor that has an acid; it turns it to a pale red; I know that. I mean to say that I know these things independently of what I got out of the pamphlet; I do from recollection; I don’t think we ever had a pamphlet before us; I know these to be true from my study of the books, independently of the pamphlet. The Court: What do you know about the presence of acid as an indication of the impurity of the liquor; whether it is not a result of distillation ? A. It is only found out by litmus paper. The Court: How do you know that the presence of an acid is evidence of an impurity; or may it not be by distillation ? A. For the same reason that distilled liquor ought not to contain an acid at all; I know it to be true, that, in the process of distillation, the acetic acid that resides either in the grain or in the fruit, out of which the distilled liquor is made, is eliminated by the process of distillation, independently of all the books and pamphlets; I have been in a number of distilleries ; have seen them distill; some stills were very bright and others very dirty ; I suppose the liquor was oxydized by the copper in which the liquor was made. In the dirty still it would be an impurity that ought to be eradicated ; it would act on the system as a slow poison.”

*469The defendant then offered to prove by Mr. McElroy, in addition to what he had already testified to the court, that Cornelius Lefevre brought to his office in York, in the early part of the year 1884, several bottles of the whiskey in dispute,to be analyzed by him.; that he did analyze four bottles of the said whiskey by certain chemical tests, some of which he spoke of in his testimony to the court, and that the results were such as to indicate that the said whiskey was impure, vitiated and adulterated. For the purpose of sustaining the defendant’s plea of payment with leave to give the special matters in evidence. Evidence rejected and exception. [1]

Verdict for plaintiff for $363.59. A motion for an arrest of judgment and for a new trial having been made, the defendant offered, in support of the motion, a deposition of G. W. Shirk, a juror, which was in part as follows:

“ Q. You have been asked, on cross-examination, whether you were influenced by anything that occurred during the time of your separation from your fellow jurors, and you answered ‘ I did not.’ State, now, whether the offer that was made by the plaintiff’s counsel in the hearing of the jury at the trial and rejected by the court to prove that the defendant, Hass, had, sometime before the trial, gone into the office of the plaintiff’s counsel, and offered to pay the plaintiff some three hundred dollars, or thereabouts, in settlement of plaintiff’s claim, was not used in the deliberations of the jury to influence a verdict in favor of the plaintiff, and were you not one of those who so used it?”

Objected to by Mr. Niles as not proper in this proceeding, irrelevant, misleading and unfair.

“ A. That point and others brought out during the trial were argued by myself and fellow jurors during the deliberation in the case. ( Witness hesitates considerably.) Q. Well, we are waiting for your answer to the balance of the question — whether it was not used to influence a verdict in favor of the plaintiff? A. It was used to show our opinion from the evidence during the trial. (That part of the question repeated.) A. I cannot speak for the others. I used it because I thought it had a direct bearing on the case in favor of the plaintiff — the two efforts made by the defendant to settle, the one in the office of Stewart, Niles & Neff, and the other at the liquor store. ”

On April 15, 1887, the rule for a new trial was discharged by the court, and judgment entered on the .verdict. The defendant' then took this writ.

*The assignments of error*specified, 1, the refusal of defendant’s offer of evidence, quoting the offer and the preliminary evidence, as above; 2, the refusal of the deposition as above quoted.

*H. L. Fisher*and *E. D. Ziegler,*with them *Geise & Strawbridge,*for plaintiff in error.

An expert need not be a specialist to enable him to give an opinion about a matter such as this.. Much depends, of *470course, on the nature of the question in regard to which an opinion is asked. There are some matters of which every man, with ordinary opportunities of observation, is able to form a reliable opinion: Ardesco Oil Co. ». Gilson, 63 Pa. 151. Nor is *It*imperatively required that the business or profession of the witness should be that which would enable him to form an opinion: Van Deusen ». Young, 29 Barb. 9; Smith ». Hall, 22 Barb. 656; Phillips ». Gregg, 10 Watts, 158. Matters of opinion being in the nature of secondary evidence, but slight preliminary proof is necessary: Leazure ». Hillegas, 7 S. & R. 313; Flinn ». McGonigle, 9 W. & S. 75.

McElroy was offered not merely as an expert. The offer embraced a knowledge of facts and results as to the alleged adulteration of the very liquor in question, and upon his experimental knowledge of these facts and results, and not upon abstractions and hypotheses, did we propose to ask him for an opinion. And, of the admissibility of such evidence, it is needless to multiply authorities, for the books abound in them: 1 Greenleaf, Ev., § 440; Carmalt ». Post, 8 Watts, 406; Detweiler ». Groff, xo Pa. 376.

In questions of science, skill and Lade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence: 1 Greenl. Ev. 440. Their opinions are confined to their judgment on the facts proved: Jameson». Dunkeld, 12 Moore, 148; 22 Eng. C. Law, 442 ; 23 lb. 269.

“ Quality,” said Tilghman, C. J., in Kellogg ». Krauser, 14 S. & R. 142, “ is very much matter of opinion. It is a kind of evidence so commonly admitted without dispute or objection, that I have no doubt of its legality.” “ I never liked the expression ‘ clearly proved; ’ proof which satisfies a jury of the fact or facts is all the law requiresPer Huston, J., in William ». Landman, 8 W. & S. 59. By which, he, of course, meant evidence that had a tendency to do so. Even where a witness testifies to impressions derived from recollection of facts, his evidence should go to the jury: Duvall’s Ex’r ». Darby, 38 Pa., 56-59; D. & C. Steam Towboat Company ». Starrs, 69 Pa. 36.

The evidence of the juror should have been admitted. Under the Act of 1869, “ no 'interest or policy of the law ” shall exclude him, by the terms of the Act.

*H. C. Niles,*of *Stewart, Niles & Neff,*for the defendant in error.

Whether or not a witness is competent to testify as an expert is very much in the discretion of the trial court, and the supreme court will never reverse in such case unless the discretion has been grossly abused: Allen’s Ap., 99 Pa. 196.

Misconduct in the jury-room cannot be proved by one of the jurors : Welling». Swasey, 1 Brown, 123 ; Cluggage ». Swan, 4 Binn. 150; White ». White, 5 Rawle, 61.

The interest or policy of law, which the legislature had in view *471in passing the Act of 1869, was that which before that time excluded parties from testifying in their own suits, or when they had any interest in controversy. It would therefore be a violent construction of the statute to make it include a *‘*policy of láw ’ wholly different from that under contemplation when it was framed: Tioga Co. *v.*South Creek Twp., 75 Pa. 433. In Ring *v.*Baker, 4 W. N. C. 185, C. P. Phila. Co., the jury were not allowed to impeach their own verdict.

May 25, 1888.

Per Curiam,

So far as the tests made by the rejected witness were concerned, they might have been admitted in evidence, for they were facts of which any one who had sufficient knowledge of them might have testified. But it does not follow that the person observing or making them was an expert chemist. Before anyone is allowed to testify to the character of a substance, he certainly ought to be required to have some knowledge of its constituents and be able to tell what is its legitimate constitution, otherwise he cannot intelligently pronounce upon its adulteration. It follows, that the witness proposed as an expert, not being so qualified, was properly rejected.

The judgment is affirmed.