166 Ga. 683 | Ga. | 1928
This is the third appearance of this case before this court; and as appears from the record it is the third .concurrent verdict in favor of the plaintiff in the trial court. Upon the first appearance of .the case in this court, a motion for a new trial filed by the bank having been overruled, the judgment of the lower court was reversed. Farmers State Bank v. Kelley, 155 Ga. 733
In the case now sub judice the motion for a new trial contains, in addition to the usual general grounds, only two special exceptions. Complaint is made that the court, in quoting section 5732 of the Civil Code of 1910, as to circumstances which may be considered in determining where the preponderance of evidence lies,
The second special ground of the motion for new trial complains that the court charged the jury as follows: “This is a simple case and a simple question of fact, and the court does not want to hurry you in your deliberation. Being a simple question of fact, you should be able to conscientiously arrive at the truth of this ease, and I hope you will be able to do so in a short while. With these instructions you may retire and make your verdict.” The movant insists that this charge was error, “for the reason that
The only real issue raised by the evidence in the trial now under review was as to the mental capacity 'of Sheldon E. Kelley to execute the assignment, as he did six days before his death. While we granted a new trial upon the first appearance of this case, because there was no evidence upon that subject to warrant a verdict for the plaintiff, an examination of the evidence adduced in the trial now under review discloses ample evidence to authorize the jury to find that Sheldon E. Kelley was not competent, at the time referred to, to attend to any business of importance or to execute any contract conveying property rights. G. P. Bennett swore that he knew Sheldon Kelley from the time he was a baby until he died, and that some time before his death his health was “awfully'bad.” He went to pieces physically, and his mind seemed to weaken with his body. He did things that a balanced man would not do. Witness was with him during his last illness, and left his home in the morning, and he died that night. At that time the condition of his mind was bad. He was up at the store a short time before he was taken sick, and he would cry, and said he wanted to kill himself and get out of the way. The witness stated other facts and circumstances, including a trade with regard to horses, and Kelley’s going off and staying, several days away from his family, with neglect of his family and business; and testified: “Prom all these facts that I have detailed I would say that his mind was off. He was not in a position to attend to business at all.” On redirect examination this witness testified: “His mind was all to pieces, and so was his body. He was not able to help himself. If you opposed him while he was sick, you would tear him to pieces.” Dr. E. R. May, a practicing physician, testified that Kelley was suffering with a constitutional trouble the year before he died, and he seemed to be in bad shape physically and mentally. In his last illness he had pneumonia. He was very much emaciated before he
Dr. W. H. Estes testified that he had known Sheldon E. Kelley for twenty years or more; had seen him occasionally for twenty years; saw him about two months before his last illness; never a year but witness was in his family. The last year or so before his death there was considerable change in his mental condition. Witness noticed a change something like a year before Kelley’s death. “That progressed. When I saw him a couple of months before his last illness, his mental condition was very bad. His mental condition then was such that it was simply impossible for him to make a contract or to understand the nature of a contract. . . Knowing his physical condition and the trouble with which he was affected, I would say that two or three months before his death he was unable to contract. Based on my knowledge and judgment as a physician, that condition grew worse until his death. Based upon my knowledge of his mental and physical condition, I am sure he did not understand the nature of the contract which he made just a few days before his death. Based on what I know of his mentai and physical condition, I doubt seriously if in a period of two or three weeks before his death he would have had lucid intervals where he would understand a contract.” There was testimony similar to that just referred to, from a number of witnesses; so that it can not be said that the jury was not authorized to find, in case they believed the witnesses for the plaintiff, that Sheldon E.
Judgment affirmed.