63 Mo. 429 | Mo. | 1876
delivered the opinion of the court.
This case presents a series of questions, chiefly relating to points of practice, rules of pleading and forms of proceeding, which may be considered and determined without regard to the main question involved, and therefore needs no preliminary statement.
1. Adopting the historical order of exceptions noted in the record, the first point was raised upon the opening of the testimony by the plaintiff, that the second count in the petition staied no cause of action, and therefore no evidence should be permitted under that count.
The second count stated, in substance, that Erb, the deceased, was the owner of a certain promissory note, dated on the 5th of May, 1871, for the sum of $700, executed by Bleckman and Horn, to said Erb ; “that said Erb was very old, in feeble health, and weak in body and mind, by reason of which he was unable to attend to his ordinary business affairs ; that defendant by marriage was related to said Erb, by all of which there, were confidential relations existing between said Erb and defendant; that a short time previous to the death of said Erb, said defendant induced said Erb to come and live with him, under'promise that he would furnish him, said Erb, a room free of charge ; that said Erb did accept said invitation, and lived with said defendant in
This count further avers that defendant has collected this note, and asks that the assignment be declared void, and then proceeds to offer to deduct from the principal and interest of the note such sum of money as the defendant’s services to Erb may be reasonably worth, and prays for general relief.
That this count is exceedingly defective is quite apparent. The only two facts stated as constituting confidential relations between Erb and the defendant are; first, the age and infirmities, physical and mental, of said Erb, and, second, that defendant was his relative by marriage. From these two facts it is averred, as an inference, that confidential relations between these parties existed. But it is obvious that neither the one or the other, or both, lead to any such inference. The pleader then proceeds to state that the defendant invited Erb to occupy a room in a house on his place, and that Erb accepted the offer, and that “whilst the aforesaid confidential relations existed,” defendant by undue influence, and cunning and craft, induced Erb to transfer this note, under pretext of keeping Erb during the remainder of his life, “contrary to the disposition that said Erb had previously made by his last will and testament,” which had been done when Erb was sound in mind and not under any undue influence.
The fact that Erb had made a will and disposed of this property differently from the disposition of it now proposed to be set aside, is, of itself, no ground for impeaching the transaction. If
2. The second point made here is upon the demurrer to the evidence on both counts, as insufficient to support a verdict under either. In regard to the first count, which was an ordinary action at law, the evidence was for the jury, and it could hardly be claimed that there was not sufficient evidence to authorize the court to submit the issue. It was not certainly very conclusive, but it was of a character which might warrant a jury in finding against the defendant. It was proved that the money claimed in this court was in the possession of the defendant about two and a half months before his death ; that it was missing when the administrator went to defendant’s house to ascertain what property of Erb was there, and that the chest in which the money was deposited had been opened. There was also evidence tending to show that defendant stated he had searched for the money, but could not find it. This was a matter of which sufficient proof was offered to authorize the court to submit the issue to a jury, and therefore, there was no ground for a demurrer, and the court properly overruled it.
In regard to the second count, there was evidence to show that Erb was about eighty years old; that for ten years and more before his death, he had attended to no particular business ; that he was eccentric in his habits, had never been married, and had lived in the neighborhood at various places, all the time however occupying a room or house by himself, and preparing his own food.
About the month of March, 1871, this old man, who was a German (as indeed all the parties and witnesses were), went to occupy a house of defendant’s, near defendant’s dwelling house, within the same inclosure, but 150 yards distant from it. Several witnesses state that he was then in a feeble state of body and mind ; that his hearing was bad, and his eyesight impaired, and
The assignment of the note against Bleckman & Co. for seven hundred dollars, dated in 1870, was made in February or January, 1871, and Erb died in April. A witness was called in to the assignment. What the condition of Erb was at this time does not clearly appear. ,
What has been stated, however, is sufficient to show that there was no ground for asking a non-suit, because of the entire want of evidence. . *
3. Upon the trial a young woman, who was a niece of the defendant, was, upon examination as a witness for plaintiff, and, in the course of her examination, was asked some questions in relation to the condition she found Erb in, when she visited defendant, about three weeks before Erb died; and her answers not being satisfactory to the plaintiff’s counsel, it was suggested to the court that she was intimidated by the looks and gestures of defendant, and therefore the court was requested to order the defendant to leave the room until her examination was ended. This request was granted, and the defendant was ordered to leave the room — which he •did. Exceptions were taken to this order, and this is one of the points insisted on here.
4. The plaintiff in this case, having been at the time of the trial sheriff of the county, an elisor was agreed on by the parties to summon a jury, but it afterwards appeared that this elisor was one of the witnesses for the plaintiff; and this was made one of the grounds for a new trial, and supported by affidavit of the counsel, that this fact was not known when the consent was given to his appointment. There is no force in this objection. The sheriff could not be disqualified as a witness because he summoned the jury, nor could his substitute.
5. The point was made in the progress of this case that opinions of witnesses, who are not experts in regard to the sanity of a party, are inadmissible, and various authorities have been cited in support of that view. The court, however, at an early day (Baldwin vs. The State, 12 Mo. 234), adopted the views of the Supreme Court of North Carolina in Clary vs. Clary (2 N. C. 78), which allowed such opinions when accompanied with some of the facts on which they were based to goto the jury; and although there, are very respectable authorities to the contrary, this decision has been understood to settle the practice in this State.
6. In this case there were two verdicts and two judgments, the first judgment being on the verdict found on the first count, which may be termed one at common law, and the second a judgment
It was observed in Mooney vs. Kennett (19 Mo. 554), that where a petition contains several causes of action, there must be a finding on each count, and these verdicts “will all be blended in one judgment.” But this observation must be understood as indicating the time when the final judgment in the case was allowed. It seems to be settled now, in the construction of this section of the practice act, that where.a count at law and a count in equity az’e included in the same petition, they require separate trials and separate judgments. (Jones vs. Moore, 42 Mo. 420; Henderson vs. Dickey, 50 Mo. 166.) This conclusion is indeed inevitable if such joinder is allowed.
7. The count in equity was submitted to a jury at the same time at which the count in law was. There were two verdicts, one on the first count, stating the damages given, and the one on the second count, merely finding for plaintiff. The court adopted the verdict practically, but entered up a decree, not referring to it, reciting that the facts were found in accordance with the allegations of the petition.
The instructions given, which were unquestionably the law, and very favorably expounded on the defendant’s side, show that the court was trying a case where the allegations sufficiently set forth a misplaced confidence, growing out of the weakness of one party, and the employment of the defendant as his agent, to transact whatever business matters the forzner may have had; and the evidence tended to show an abuse of that .confidence, not by inducing the old man to alter his will, but by getting from him an immediate compensation for services to be pez’formed in future, altogether larger than the services were reasonably worth in the then reasonable calculations of the continuance of the old man’s life. This was not the case stated in the petition.