*1 Evidence, See also many photographs he had studied trial § C.J.S. Jones 14.23; Evidence, on (6th Annot. ed.) the accident scene. § A.L.R. 1460. assigned plaintiffs’
The thrust of Billings hold the trial is that We court had dis being error now considered permitted Billings consider cretion determine should not to to whether have been undisputed trial which de allowed to consider the testi testimony he heard on immediately mony which he the accident scene had heard and there was scribed hearsay. It no after the abuse of that discretion. collision as was part hypothetical ques was made a of the VII. plaintiffs’ We have considered only by general tion reference. That tes they claim granted should have been a new timony photo dispute. was not in trial and that permitting the court erred in graphs clearly support said Billings engage in long narrations of testimony. opinion. reasons for his find them We Ipsen Ruess, In 41 without merit. 658, 662, quote following We find no reversible error. The judg- Quimby
from Greenhawk, 166 Md. appealed ment from is affirmed. 338, 171 59,A. Affirmed. “ ‘* * * practice the better [W]hile incorporate hypothetical ques- is to
tion all expert on which an wit- facts
ness is asked give opinion, yet an
hearing reading or testimony
accepted imperfect as an for substitute hypothetical question
the formal in fur-
nishing
the data for
ex-
inference
”
pert witness.’
Ipsen
we affirm the trial court’s rul
CITY,
FIRST NATIONAL BANK IN SIOUX
ing allowing
expert
express
a medical
an
Margaret
Executor
the Estate of
opinion
part
based in
testimony
medical
Crosby, Deceased, Appellee,
he had heard.
a like holding
Ing
For
see
Brannon,
wersen v. Carr &
CURRAN,
Curran,
Anna
a/k/a
court’s permit discretion to expert an wit-
ness give opinion an upon based testi-
mony which he given heard other
witnesses hypothetical without a state-
ment of facts, where the witnesses are few and the testimony voluminous, is not * *
complicated, conflicting. *. above,
“As indicated the allowance of
opinion testimony based on evidence
which the witness is, most, heard * * matter of discretion.
UHLENHOPP, Justice. This case validity involves the of trans- fers of bank tenancy by into Margaret Crosby confidante, to her Curran.
Margaret Crosby born was in 1871 in Nebraska and died in in City, Sioux Iowa. never She married and left no close intelligent relatives. was an will; strong one witness testified that she very genteel was woman, “a Christian the standards today little old-fash- ioned, wants, many she didn’t have she was woman, very ap- charitable cheerful preciative.”
By when she was Miss Crosby’s eyesight was gone. almost She was blind other, in eye, had a in the cataract only objects. could see In 1966 she had surgery sight for the Her cataract. in that eye improved very poor. but remained healthy except Otherwise for the age. infirmities advanced She lived in geriatric Joseph’s Hospital ward of St. City. in that ward was Sioux When later closed, she lived in a rest home. In about Mrs. Curran took patient
care of another geria- in the same ward, acquainted tric and became passed, Miss years As Miss Cros- by came to in confide Mrs. Curran. Whereas Miss Crosby was close-lipped affairs, with others about her she eventual- completely Mrs. Curran into her took patient confidence. After the other died in taking began care of Crosby’s Miss business affairs.
Early in Miss decided to prepared will make her and had (then) Attorney C. F. Stilwill. She exe- cuted the will and Mr. Stilwill Mrs. Curran witnessed the execution. Beebe, McCluhan, Kindig, Rawlings & Crosby gave property will Miss her to var- Nieland, appellant. City, Sioux for ious charitable uses and named executor City (the the First National in Sioux Bank Wilson, Bikakis, Rhinehart & Sioux bank). At her estate amounted death her City, appellee. for counting approximately $83,352, $29,367 suit. about involved time, Curran, passing Mrs. by equitable With sions III and pro- IV be tried Crosby, with Miss ceedings. consultation handled Crosby’s more and more of Miss affairs Thereafter, the bank dismissed divisions eventually completely. handled them prejudice. I and II without Over Mrs. possession Mrs. Curran even had at her objection, Curran’s proceeded the suit Crosby’s financial home of records. equity trial in on divisions III and IV. powers her retained mental complete reposed but trust Mrs. Curran. trial, After the trial court held that a gifts money number She made a constructive trust existed as to the trans- Curran, and to others. and Mr. ferred together with interest them, which had been declared on and ren- portion A substantial of Miss dered decree for the bank on division III. deposits. assets were bank Between appealed. *4 January and March Crosby ages when Miss was between the of propositions Mrs. Curran asserts several years, deposits 96 and 97 of those five in appeal, this de novo but we find four is- changed Margaret were from the name of First, sues to be determinative. did the Crosby Margaret Crosby to the names of erroneously district court transfer divisions joint and as Mrs. Curran tenants Second, III equity? and oral IV did right survivorship. The of transfers testimony regarding alleged construc- request Crosby, were made at the of Miss tive parol trust violate the evidence rule? through They signed Mrs. Curran. were Third, did a confidential exist by pres- in in her room the between Miss and Mrs. Curran? ence of and Mr. Curran. The fourth, by And did Mrs. Curran show by effected at the banks transfers were clear, satisfactory, convincing and All the funds in the ac- Mrs. Curran. that the transfers were valid? originated with Miss counts Equity. I. issue The first Transfer death, After Miss her will was subsidiary involves two issues. divi- Were probate, ap- and the bank was admitted to cognizable equity? sions III and IV pointed The executor. bank demanded the litigant legal equi- joining How does a and Curran, deposits transferred from Mrs. but by equitable pro- table causes secure trial placed in her name alone. them ceedings latter ? The bank then commenced the and ref- (a) Constructive trusts depos- suit in four divisions to recover the recognized are ormation of instruments sought its Division a from Mrs. Curran. I relief equity jurisdiction; heads such replevin, writ of division II asked for ac- Am. exclusively equitable in nature. 54 counting, alleged division III a construc- 441; 45 at at Trusts § § Jur. trust, requested tive and division refor- IV 2 at Instruments Reformation § Am.Jur. 584; mation titles to the accounts. The Trusts 454b § C.J.S. jury on bank demanded division I. 1 at of Instruments Reformation § C.J.S. 327. by to dismiss her was After a motion answered,
overruled,
denying
causes
equitable
and
(b)
legal
Joinder
general
four divisions.
de-
present rules of
our
forbidden
jury trial.
manded
recog
procedure, but our statutes still
civil
proceedings
nize two kinds of civil
replied
The bank
and in addition moved
—ordi
611.3.
II,
Code
nary
equitable.
that
tried in
and
III,
divisions
and IV
§
V,
District
(“The
Art.
the motion. See
Const.
equity.
Curran resisted
§
equity,
law and
a court of
The
be Court shall be
district court ruled that division II
separate juris
be distinct
proceedings
tried
which shall
by ordinary
but that divi-
parol
require
an action
evidence rule did not
.
.
When
dictions.
equity
exclusion of the
involving law and
causes is com
evidence adduced.
by ordinary proceedings,
menced
as this
Relationship
III. Did
Confidential
replevin, ei
one was since division I was
Exist?
thus come to
We
the merits of
party is
issues ex
ther
entitled to have the
held,
first,
case. The trial court
that
clusively cognizable
equity
equi
tried
confidential relationship existed between
proceedings.
table
611.10. The bank so
§
second,
the two women and
that Mrs. Cur-
IV,
II, III,
moved
divisions
as to
uphold-
ran did not sustain her burden of
properly
the district court
sustained
ing
the transfers
into
III and
motion as to divisions
IV. Since
tenancy.
subsequently
divisions I and II were
dropped,
inquire
need not
whether
The Iowa law in this area stems
right
divi
refusing
court was
order
mainly
Armagast,
from Curtis v.
proceedings.
by equitable
sion II
tried
507, 138
the court
There
stated
proper
se
need we consider
Neither
equity
doctrine of
if a
II,
quence of trial as to
I and
divisions
repose
comes to
trust in another so that
hand,
IV, on the other.
and III and
person,
the other has influence over such
on the
The issues of fact as well
of law
thereby
the two are
not at arm’s
remaining
were tria-
divisions III
IV
length, equity
regard
will
transfers
such
Klopp Chicago, M. &
ble to the court.
*5
person
presumptively
to the other as
inval
906;
466,
Iowa
136
Ry.,
St. P.
156
N.W.
upon
id and cast
the other the burden of
Hobart,
512,
51 Iowa
1 N.W.
Hobart v.
upholding the
said
transfers.
court
164,
780;
Hollands, 81 Iowa
see Frank v.
520-521,
(
Affirmed. particular evidence in a case must show except REES, All concur. confidential J., relationship gave the Justices recipient dissents, RAWLINGS, Kunz, who dominance. Kunz J., who 1096, 1087, 226, part. takes no 125 N.W.2d (the gist presence of the doctrine is the aof dominant influence under which the act is REES, (dissenting). Justice presumed done). to have been The court must respectfully Shrope, I dissent. said in Albaugh 745: plaintiff-bank The action against thing, gist “The essential deposits Curran to joint recover the ten- doctrine, very it is found in the whether ancy at the time of Miss death itself, relationship in the case of trus- divisions, was in several but on trial the trust, tee que and cestui situations upon question case turned the sole as to exists, fiduciary where a relation strict whether the transfers into any or from relation a confi- arises joint tenancy were invalid because of a dential the surrounding nature and cir- relationship confidential between the two parties, presence cumstances of the is the women. When trial court held for the influence, of a dominant under im- basis, appealed. bank on that pulse presumed of which áct While prop- Curran asserts several Mrs.. presumption have been The done. may here, necessary ositions find it I to consid- where, arise relationships from various er the relationship issue of confidential from the parties situation of the and the only. surrounding them, ap- circumstances pears that possessed one inwas support evidence does a claim position dominating to exercise a influ- that the tenancy transfers into result- ence over the other.” ed from actual fraud duress. The bank’s claim must therefore rest on the Normally showing of trust and con general principle stated in Oehler Hoff- reposed fidence another is man, principle apply. By sufficient to- make itself, reposed virtue of the confidence recipient of transfer has he influence decisions, clearly “Under if it our possess would if the two individuals existed, shown a confidential length. were at arm’s See Utterback v. made, the time a deed between the Hollingsworth, 225 N. grantor grantees in which the latter prerequisite ap to the (“It W. persons were the dominant and the plication that faith of the doctrine one, presump- former the subservient *8 a reposed; repository that the confidence be procured by tion was arises the deed position superiority thereby shall be in a fraud or undue influence which the added); and dominance”—italics Burns v. grantees clear, satisfactory must rebut Nemo, 105 N.W.2d and convincing evidence.” relationship (“A confidential inquiries person gained complete Two made in when one the are a court has another, applying purports principle given confidence of to act with this case. First, only party in relationship is a the other clearly confidential the interest of so, second, mind, any recipient advantage If has selfish shown? the and discards by clear, upheld himself.”). the transfer satisfac- for Shrope, supra; always Pittman, Cas the is not so. Hess But situation 269,276, reposes may person 113.” arise in which es another, great confi even confidence Crosby extraordinary per- was an Miss dence, deci yet fact retains full good only mind, son. had she sion-making to himself. Then the element singular determination in her affairs. lacking. Moorhead v. of dominance is See While Mrs. Curran made out the checks Miller, (Iowa); Jeager 171 N.W.2d debts, pay di- Crosby Miss Miss Elliott, N.W.2d rected how the were to checks be issued. 631, 113 N. Hoffman, Oehler Although kept the records Groves, 248 (supra); Groves v. W.2d home, her own parts Miss recalled 124. I this is believe to her them room time from to time for such case. using Miss Crosby, review. eyesight, for the studied checks and Groves, page supra, at In Groves v. records from the bank each month. N.W.2d, this court said: of 82 Though she could but poorly see Miss Crosby remained in control of her finan- pre- “We have been slow to define the affairs, cial made according decisions relationship. limits cise of a confidential wishes, her own and retained her mental may although exist is clear it there It acuity, day. to the last Restatement, fiduciary As no relation. Trusts, b, says, section comment it ex- examining proofs After all the giv- person gained when one con- ists ing findings deference to the trial court’s fidence of purports another and act or (notwithstanding confidence advise with the other’s interest in mind. Crosby had in Curran), I feel the solely It does arise from rela- blood record rather abidingly establishes that tionship parent such as between was not subservient but that gist child. The of the confi- doctrine of was her own master to the end. presence dential is the of a clearly bank did not presumption show dominant under influence which the act applies, I and would hold therefore that presumed Purpose been have done. presumption apply. does not I Hence doctrine to defeat and correct inquiry would not reach as to whether betrayals of confi- trust abuses of presumption if applicable, was over- dence.” Much come. that in-
quiry
be
as on
would
the same
the first in-
quiry, but
quantum
the burden and
“That a
by kind and consider- proof
be
would
different. See In re Es-
ate treatment
an
induces
affectionate re-
Lundvall,
tate of
gard
part
on the
of another raises no 535;
Miller,
Moorhead v.