This suit wаs instituted by ap-pellee against Belle M. Burchill, Edna M. Burchill, and h’ort Worth Oil Development Company, the latter having Belle M. Burchill as its president, and Edna M. Burchill as its secretary, to recover $10,000, which appellee claimed was obtained from him by the appellants by fraud and misrepresentation. Appel-lee pleaded that at the time he was dealing with appellants and investing his money in oil that did not materialize he “was a believer in the theories, practices, predictions, and phenomena of spiritualism and spiritualistic mediums, but the defendants were not such believers; and 'by reason, of such belief and faith by plaintiff he had the utmost faith and confidence in the ostensible revelations, statements, and representations of such mediums, and by reason thereof his mind was in an abnormal and irrational condition, and plaintiff, by reason thereof, аccepted and acted upon such revelations and representations as truth; and on account of this irrational state of his mind he was not capable of understanding the nature, quality and consequences of his acts when based upon and induced 'by supposed revelations and statements of such mediums, when made by such mediums as representations by them of the existence of facts, past, present, or futurе. And, knowing of this state and condition of the mind of plaintiff, and of plaintiff’s belief and faith in the power of persons known as spiritualistic mediums or clairvoyants, to see and perceive things and substances that are invisible to, and beyond the perception of, ordinary persons, but defendants themselves having no faith or belief in such phenomena, and designing to take advantage of plaintiff, overcome his will and overreach him, and to induce him thereby to part with his money, at- and prior to each of the transactions, represented to, and caused to be represented *512 to plaintiff, that divers persons, spiritualistic mediums, had been able to perceive, and had perceived, extensive deposits of oil within and underneath said land, and that such mediums had so stated to defendants, and that defendants had been so informed by. such mediums, and likеwise caused one Kaiser, a person well known as a spiritualistic medium, and other such mediums, to make like statements to plaintiff as to the existence of oil in said land and beneath the surface thereof, each and all of which representations and statements plaintiff believed to be true and same were relied upon by plaintiff as the statements of actual facts.” The other misrepresentations alleged wfere that appellants would return the money advanced by appellee if no oil was procured in paying quantities, and, although no oil' was discovered, the advances were not returned.
In a long answer all of the allegations of fraud were denied and set up contracts in writing by and between the parties, to the effect that appellee was a shareholder in the oil company, and took his chances in the venture, which proved to be a failure.
The cause seems to have been submitted on special issues, although the transcript does not contain the charge, except as copied into the judgment in connection with the answers of the jury, and' judgment was rendered in favor of appellee for $13,271.65.
The jury found that an assignment was made by the Palo Pinto Oil & Gas Company to appellee to secure him in his money advances; that the assignment was not made to evade payment of commissions to one Wood; that appellants agreed to refund money advanced by appellee, if he decided not to take stock in the Port Worth Oil & Development Company, but did not at the time the promise was made intend to comply with it, although appellee credited, relied, and acted on such promise; and Mrs. Belle M. Burchill never in good faith offered to return the $10,000 advanced by appellee.
One hundred and twenty-two pages of the transcript, of 206 pages, are devoted to bills of exception, and the brief of appellants contains 83 pages of typewritten matter, in which appear 17 assignments of error and 14 propositions, with citation of 35 authorities. A thorough investigation of the voluminous record and lоng brief has consumed considerable time and energy, of this court, some of which possibly might have been conserved, and the same ends more expeditiously, if not pleasantly, reached through a shorter record and more concise brief. However, “what is writ, is writ.”
This is a third appeal of this cause, the first being reported in
According to the statement made by the Court of Civil Appeals, the right to recover on the first, apрeal was based on certain false and fraudulent representations made by Belle M. Burchill to appellee, and that at the time the stock subscription contract was made the two Burchills agreed to return to appellee his $10,000 subscription in the event no oil was found. While it is not shown that the spiritualistic influence over the mind of appellee was pleaded, yet the court states that the evidence wаs allowed to wander out into the mysterious realms where disembodied spirits make their abode, and the.court said:
. “We do not care to say that spirits from the great beyond may not visit and communicate with the living, nor that it is impossible for man’s spiritual powers to be so developed and purified as to constitute a medium for communication with disembodied beings, for the phantasm of to-day is so often a reality of to-morrow. But thеse subjects belong to realms and powers that as yet must generally be classed as purely speculative, and not so established by evidences cognizable by the law which we are required to administer as to be classed as facts — as among proven things. Indeed, we think it may be said that a belief that the living, through the agency of a medium, can receive authentic information from the spirits of the dead, is, in the general аcceptance of mankind, a species of delusion, and that such communications, in general acceptance, are of too unsubstantial a character to be received as representations of fact.”
The court held that statements made by the Burchills to the effect that spirits had revealed, through a medium, the existence of oil in valuable quantities beneath the land in question could not form a basis for relief for the plaintiff.
On the second appeal of this case the judgment was reversed on account of the introduction of testimony to impeach Mrs. Bur-chill on a matter not material to any issue in the case, and it was held that, if the promise to return the $10,000, if no oil was discovered, was made with no present intention to perform it, she would be bound. It was also held that, unless it was shown that the mediums were instigated by Mrs. Burсhill to majre the representations as to the presence of oil in the land, she could not be held responsible for such representations.
“He believes that men can see things that no other mortal man can; he 'believes in de-materialization of the body, that I, as a doctor, don’t believe in at all.”
He further stated:
“I think the man has delusions in this regard. He said, in regard to the mediums of spiritualism, that people could foretell and foresee, divine, receive information, etc. He said that you had to test these people out, whether it took long years or not."
The doctor explained “dematerialization of the human body is for the body itself to disappеar so it is not tangible, so that you cannot lay your hands on it.” The doctor obtained all his knowledge of appellee in less than an hour, from'what appellee told him, while the cause was on trial. The doctor’s idea of the meaning of “delusion” was “false belief,” and a “false belief” was anything that the witness, “as a doctor, don’t believe in at all.” These “false beliefs” about spiritualism the doctor admitted were the оnly basis for the statement by the alienist that appellee was mentally incompetent. The testimony of the witness was long drawn out along the lines indicated; the gist,of it being that the doctor deemed any man crazy who had “delusions,” that is, “false beliefs,” that is, about mat-, ters that the witness, “as a doctor, don’t believe in at all.”
There is a large number of religionists who believe that men can. be cured without the administration of drugs or medicinеs, and those people from the standpoint of the medical witness are suffering under “delusions,” “false beliefs,” which can meet with no sanction from the doctor, and, necessarily, reasoning from his premises, evidence of mental incompetency. There - are men that believe that most of our physical ills can be cured by manipulating the vertebra, and these must be “delusions” or “false beliefs,” which are evidences of mental incapacity to attend to bu-siness affairs, because doctors of the regular schools usually do not believe in them. The evidence was based upon the conviction of a physician as to the sanity of a man, based on his observation and conversation with him for less than an hour, in which he had learned that the man was a believer in spiritualism, in which the doctor did not believe. Upon this belief of the man in sрiritualism the witness based his theory that the man’s mind was unhinged and that he was incompetent to invest money in an pil enterprise which proved a failure. The evidence of any man claiming to be an expert on insanny must be based on sufficient knowledge and the adequacy of the scope of observation of the person about whose sanity the evidence is given. Wigmore on Evidence, § 689. We do not think that the witness qualified himself tо testify by showing such observation of the person claimed to be mentally incompetent to attend to business, and basing his testimony alone upon certain beliefs that the person examined said he entertained. No act, no word of appellee, outside of his belief in spiritualism, was, shown as a basis for the opinion of the doctor. Such belief alone, did not evidence insanity. If absurd beliefs, and almost idiotic conceptions .as *514 to the laws of nature, as well as to matters of religious faith, could be made a basis for a charge of incapability to attend to the ordinary business affairs of life, possibly a number of our citizenship would be affected. No man has the right to set himself up as a judge in matters of religious opinion, nor dictate to others in questions of belief and faith. What 'is truth, enrobed in her most brilliant garb, in the mind of one man, may be a “delusion” in the eyes of another, and who shall pronounce the decree as to the sanity of the one or of the other. Yet this authority has been assumed by the alienist in this case, and a man condemned to the status of one mentally unfitted for the ordinary busiriess affairs of life, because he believes that the inhabitants of the shadow land hold converse with certain people in the flesh. Similar evidence to this, in this same cаse, was held on a former appeal to • be incompetent and inadmissible, standing alone, and it should have been excluded.
“The practice of admitting improper evidence, with the promise or expectation of subsequently directing the jury not to consider it, or of controlling it by the charge, is not to be encouraged; for upon minds misdirected in legal investigations, and excited by sympathy aroused by recitals of apparent hardship, such directions or instructions will usually be found impotent to efface impressions once made.”
On the ground of the admission of improper testimony, аlthough afterwards excluded, the judgment was reversed and the cause remanded. The same doctrine was reiterated in Tucker v. Hamlin,
Appellee had alleged fraud and misrepresentation and insanity, and the issue of fraud was submitted, and it was "found by the jury to have caused appellee to enter into the contract, and it is probable that their action in finding fraud might have been influenced by the belief that appellants were dealing with a man who had been pronounced insane by a man expert in mind diseases. There was no testimony that Mrs. Burchill steered appellee “to one Frank Kaiser, a medium,” but Mrs. Burchill and appellee agree that the latter knew Kaiser, and that he introduced appellee to Mrs. Burchill when she came to Kaiser’s house to get the address of one Wood, to whom she wished to write. There is no testimony tending tо show, as asserted in appellee’s brief, “that Kaiser, by the procurement of the said appellant, made his revelation as to the existence of oil under the ground, and told Hermsmeyer to go to Montana and go down a certain lane, at the end of which was a house with a yellow gable, in which lived a man who would buy his place for $10,000, and in the same connection repeated his revelation as to the existence of oil undei; the ground.” Appellee points to no testimony sustaining the assertion, and we have been unable to discover such testimony. Appellee swore that he did go to Montana, did find the house with the yellow gable at the end of the lane, and did find the man who paid him the $10,000. Probably appellee had provided, unthoughtedly, the material for the revelation as to the lane and the house, and of the probability of the occupant of the house desiring to purchase his Montana home, and doubtless the verification of the message of the medium as to the matters in Montana caused appellee to believe in the assertions of the medium as to the existence of oil beneath the land. If appellee was induced by the medium to invest everything he had in the search for oil, it was his belief in the. medium, and not in Mrs. Burchill, that cаused him to do it. There may have been fraud in causing ap-pellee to think he was lending money instead of investing it, but, if so, the promise to restore it and not the mediumistie revelation caused him to make the loan.
Nothing, except a belief in spiritualism, was offered to show that appellee was not normal in his mental faculties. He knew how to run his farm, how to sell it, to work in repair shops, and respond to the ordinary demands of existence, and he acted also under the advice and with the aid of pm adult son, whose mental qualities were not assailed. Even at the time of the trial appel-lee was employed in a railroad shop, and he knew how to employ eminent counsel, and how to asssist him very materially in the testimony. He alleges that he is of unsound *515 mind, and yet he is permitted to enter the courts of the state and prosecute a claim ■without the assistance of a next friend or a guardian.
The other matters of which complaint is made will not arise on another trial, and need not be discussed.
The judgment is reversed, and the cause remanded.
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