150 Ky. 401 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
This is an appeal from a judgment setting aside a transfer of certain shares of stock in the P. Bannon Sewer Pipe Company and the Kentucky Vitrified Brick Company, made by Patrick Bannon to his son, M. J. Bannon. There have been two trials. On the first trial the questions involved were submitted to the jury for a general verdict. The jury found in favor of plaintiffs. On appeal to this court, the judgment was reversed and cause remanded. See Bannon v. Patrick Bannon Sewer Pipe Company, 136 Ky., 556. On that appeal the court
First, it is insisted that the evidence is not sufficient to sustain the verdict, and also contended that because of the direct, and positive evidence of Mr. Taylor, who was present when the power of attorney was drawn, to the effect that Patrick Bannon was of sound mind, and no undue influence was exercised upon him, the case is one calling for a peremptory instruction in favor of the defendant. The rule that the testimony of a witness must be accepted as ’true applies only in the event that he is unimpeached, and there is no evidence to the contrary. While it is true that there is no attempt to impeach the testimony of Mr. Taylor, yet all of the facts and circumstances detailed by plaintiffs’ witnesses, tending to show unsoundness of mind on the part of Patrick Bannon, and undue influence over him exercised by M. J. Bannon, constituted evidence tending to rebut and overcome his testimony. That being true, his evidence, while strong, is not conclusive, because he was the only person present. While it may be true that- he, in this particular instance, testified to the exact conditions that existed, yet, if it were the general rule that the testimony of a witness was conclusive merely because he alone was present when the particular transaction called into question took place, then it would not matter how incapable one was of transacting business, or what abso
Another ground urged for reversal is the misconduct of counsel for plaintiffs in their opening- statements and closing arguments to the jury. While the alleged improper remarks, both in the opening- statements and closing arguments, are referred to in the motion and grounds for new trial, accompanied by the statement that they more fully appear and are set out at large in the stenographic report of counsel’s opening statements and arguments to the jury, the bill of exceptions does not contain a stenographic report of the opening statements or closing arguments, or of the alleged improper remarks; nor are the alleged improper remarks otherwise set forth in the bill of exceptions and certified to by the
It is next argued that the court erred in its instructions to the jury, and in refusing certain instructions offered by defendant. The instructions offered by the defendant and refused by the court are as follows:
“1. The court instructs the jury that the delivery of the stock certificates, in the evidence referred to, to Patrick Bannon, Sr., for the stock originally subscribed for in the articles of incorporation of the Kentucky Vitrified Brick Company and the P. Bannon Sewer Pipe Company was not necessary to establish his title to the said stock and its non-delivery, if it was not delivered to him, did not affect his right. ’ ’
“2. The court instructs the jury that the law presumes that Patrick Bannon, Sr., was of sound mind on September 2,1902, and unless the jury shall believe from the evidence that he was not of sound mind, on the said date, the jury should find that he was of sound mind.”
“3. Unless the jury shall believe from the evidence that M. J. Bannon had undue influence over his father, Patrick Bannon, within the sense and meaning of the term, as elsewhere defined in these instructions, they should find that said M. J.' Bannon did not have undue influence over the said Patrick Bannon. ’ ’
“4. Unless the jury shall believe from the evidence that M. J. Bannon exercised undue influence over Patrick Bannon, Sr., at the time or in the procurement of! the assignments of the stock to him of the Kentucky Vitrified Brick Company, and of the P. Bannon Sewer Pipe Company, of September 2, 1902, they should find that said assignments were not made or procured by the undue influence of the said M. J. Bannon.”
The court gave the following instructions:
“1: The court instructs the jury that if you believe, from the evidence that Patrick Bannon, Sr., on September 2, 1902, when he transferred to M. J. Bannon 250 shares of the stock of the P. Bannon Sewer Pipe Company, and 200 shares of the stock of the Kentucky Vitrified Brick Company, did not have mind and mental ca
“2. The court instructs the jury that any influence obtained over the mind of Patrick Bannon, Sr., by M. J. Bannon, to such an extent as to destroy his free agency and to constrain him to do, against his will, what he would otherwise refuse to-do, is undue influence, whether such influence was obtained directly or indirectly, or whether at one time or another, but any reasonable influence obtained by acts of kindness, or by argument addressed to- the • understanding, is not in law undue influence. ’ ’
“3. Subject to the above instructions, you are now directed to answer in your verdict each of the following question, yes or no.
“1. Was the transfer of the 2nd day of September, 1902, by Patrick Bannon, Sr., to M. J. Bannon, of 250 shares of stock of the P. Bannon Sewer Pipe Company, and 200 shares of stock of the Kentucky Vitrified Brick Company, obtained by M. J. Bannon from his father to himself by or through the exercise of undue influence over his father, Patrick Bannon, Sr.?”
“2. Was Patrick Bannon, Sr., of unsound mind on September 2, 1902, when he transferred to M. J. Bannon 250 shares of stock of the P. Bannon Sewer Pipe Company and 200 shares of stock of the Kentucky Vitrified Brick Company?”
“3. Did the plaintiffs know, on January 1, 1904, that M. J. Bannon had received, on September' 2, 1902, 250 shares of stock of the P. Bannon Sewer Pipe Company, and 200 shares of stock of the Kentucky Vitrified Brick Company?”
The particular objections urged against the court’s instructions are that in the first question the court assumed that the transfer of the stock was obtained by M. J. Bannon from his father to himself. It is only necessary to read the instruction in order to see that such is not the case. The direct question is put: “Was the
Counsel for defendant earnestly contend that question No. 2 is fatally defective because it does not give to defendant the benefit of the presumption of sanity on the part of Patrick Bannon by indicating to the jury where the burden of proof lay, and that the court should have given instructions similar to those asked for by defendant. It is true that in cases similar to this, where the questions involved were submitted to the jury for a general verdict, this court, in a few cases, has held instructions erroneous that were silent as to the presumption of sanity, but the rule now in force in such eases is that the court should not instruct the jury as to pre•sumptions of law, but should simply frame the instructions so as to indicate the burden of proof without- expressly referring to it. Henning, et al. v. Stephenson, et al., 118 Ky., 318. Following this view, it is held that an instruction in a will case which directs the jury to find the will in' question to be the will of the testator unless they believe that at the time of the execution of the will the testator \yas of unsound mind, is the proper form in which to indicate the presumption of sanity. It is conceded that under the above rule the court should have, in its first instruction, told the jury to find Patrick Ban-non, Sr., of sound mind unless they believed from the evidence that he did not have mind and mental capacity sufficient to understand his property rights, and the character, object and nature of the transfer of the stock, and the mental ability to transfer same according to á definite desire of his own. By the instruction given, the court told the jury that if they believed from the evidence that Patrick Bannon, when he made the transfers of stock, did not have - mind and mental capacity sufficient to understand his property rights, and the character, object and nature of the transfer of the stock, and the mental ability to transfer same according to a definote desire of his own, he was of unsound mind. In other words, the instruction given required the jury to believe from the evidence certain things before they could find Patrick Bannon, Sr., of unsound mind, while
Lastly, it is insisted that the court erred in excluding certain evidence offered by defendant with reference to transactions had and statements made by the decedent, Patrick Bannon, Sr., in the presence 'of Robert Burrell, the husband of one of the plaintiffs. The argument is made that the transactions and statements, if made in Mrs. Burrell’s presence, would have been admissible, and that having declined to testify herself, and having offered her husband as a witness, the evidence referred to should have been admitted under -the common law rule of unity. It is not contended that Burrell was the agent of his wife, or that he was introduced as her agent. He was a competent witness- because his wife did not testify, and the suit was one which she might have brought as a single woman: In thus testifying, he stood on the same footing as any other witness, and the trans
Judgment affirmed.