29 Ind. App. 222 | Ind. Ct. App. | 1902
A demurrer to the complaint of appellee, consisting of two paragraphs, for want of sufficient facts, was sustained. On appeal to the Supreme Court, this ruling was disapproved. Miller v. Hart, 135 Ind. 201. The action was against Alonzo Osborn, as guardian of Samuel Hart, a person of unsound mind, and Samuel Hart. The first paragraph of complaint showed that Samuel Hart had been duly adjudged a person of unsound mind, in 1857, and had ever since been under guardianship; that Isaac Hart, his first guardian, having resigned, one John Hart duly became his guardian on the 5th of September, 1864, and continued as such until his death, September 16, 1889, whereupon, on the 18th of September, 1889, said Alonzo Osborn became guardian, and had since continued to be such; that from the 1st of October, 1864, until the 18th of September, 1889, the appellee kept, boarded, clothed, and did the washing for the insane ward at the special instance and request of his guardian, with the understanding and agreement with the guardian that the appellee should be paid and compensated for so doing by the guardian out of the estate of the ward in the hands of the guardian; that during that period the ward had no home or place to live other than that furnished by appellee, and that such boarding, clothing, washing for, and taking care
Upon the return of the cause to the trial court, the demurrer of the ward having been struck out, and that of the-guardian having been overruled, the death of Alonzo Osborn, the guardian, and the appointment and qualification of George E. Hart as his successor in the trust having been suggested, the appellee filed a supplemental complaint showing that upon the settlement of the estate of Alonzo Osborn, deceased, his successor as guardian had received from the administrator of that estate the funds held by the decedent as such guardian, and substituting as defendant the successor, George E. Hart, as guardian, the appellant herein. The appellant filed an answer in nine paragraphs, the first a general denial. The other paragraphs were held sufficient on demurrer, except the second, fourth, and ninth, demurrers to which were sustained. The appellee replied by general denials.
On trial by the court a special finding was rendered, the facts being stated in substance as follows: July 8, 1857, in the court of common pleas of Wayne county, Samuel Hart was found and adjudged to be a person of unsound mind, and incapable of managing his own estate. The appointment and service of the several guardians were stated as alleged in the complaint. When John Hart became guardian he received of the former guardian about $2,500, the property of the ward. This action was commenced March 24, 1890, by the appellee against the ward and Alonzo Osborn, his guardian, who then had in his hands,
The court stated as conclusions of law, that so much of the appellee’s claim as occurred prior to the 1st of March, 1877, was barred by the statute of limitations; that there was due the appellee, and he was entitled to recover, $1,666.88, with interest thereon at the rate of six per cent, per annum from March 24, 1890, amounting to $2,575.32, and was entitled to an order of court requiring the appellant, as guardian, to pay that sum to the appellee out'of the estate of the ward in the hands of the guardian; and it was accordingly adjudged that the guardian make such payment.
The appellant’s motion for a new trial was overruled. In the second paragraph of answer, a demurrer to which was sustained, it was .alleged that before and until the ward went to the appellee’s house to reside he had been living among his relations and working wherever he resided and made his home, without charge being made against him or his estate, because he was in good health, physically strong, and able to work, and his labor was ample' compensation for his boarding, clothing, washing, care, and support; and the appellee who was a relative of the ward well knew and understood such facts at all times, and was well acquainted with the ward, and well knew his disposition, the requirements for his care and support, his ability to labor, and the value of his labor. It was further alleged that the ward has never been of a vicious or troublesome disposition, or an insane person, but has been weak minded at all times, from childhood, but has always been as easily governed as a child, and not more troublesome to care for or provide for than an ordinary child; that he was reared on a farm, and was accustomed to farm work, and was reliable and fit to be intrusted with all kinds of farm work,
In the third paragraph of answer it was alleged that during the period in which it was charged in the complaint that the appellee furnished boarding, etc., the ward performed labor and services for the appellee on his farm, at the appellee’s instance, request, and direction, which were reasonably worth $5,000, for which the appellee never paid the ward or his guardian anything, which labor and service were reasonably worth more than any and all boarding, etc., furnished by the appellee. In the fourth paragraph, a demurrer to which was sustained, addressed to the appellee’s claim and demand which accrued prior to April 24, 1884, it was alleged that such part of the claim and demand did not accrue within six years before the bringing of this action. The fifth paragraph was a general answer of payment. In the sixth paragraph it was alleged that the appellee was justly indebted to 'the ward and his estate for services rendered to the appellee by the ward at the special instance and request of the appellee and by his direction, and for work and labor done and performed for the appellee at his instance and request upon his farm and in his dairy, every day from October 1, 1864, to September 18, 1889,
The seventh paragraph was addressed to the first paragraph of the complaint, and alleged that the appellee did not furnish or do any of the matters or things therein alleged, under the contract therein mentioned, after the 1st of March, 1877, aú'dlthat the appellee’s cause of action, if any, accrued at that date, and did not accrue within six years before the bringing of this action. In the eighth paragraph the appellant answered that the appellee did not furnish or do any of the matters or things in the complaint alleged under the contracts and requests or agreements mentioned in the complaint after the 1st of April, 1881; that the appellee’s cause of action, if any, accrued prior to that date, and did not accrue within six years before the bringing of this action.
In the ninth paragraph of answer, a demurrer to which was sustained, it was alleged that the appellant had no information or knowledge of any of the requests, contracts, or agreements mentioned in the complaint having been made by John Hart, former guardian, with the appellee, but that, if made, they were all made without the permission, authority, sanction, or approval of the Wayne Circuit Court, “which at all of the said times” had charge, control, and jurisdiction of the ward, his person, and estate, and of John Hart as guardian thereof, and the appellee at all of said times knew that said John Hart was such guardian; that from the date of his appointment as such guardian until his death in 1889, John Hart, as such guardian, from time to time, as required by law, made reports to said court, and carried forward and showed therein, from one report to another in successive order, the balances owing by him as guardian to the estate of said ward; that in his last
It would seem to require little more than the statement of the contents of the pleadings and special finding, to sustain the action of the court upon the demurrers to -the second, fourth, and ninth paragraphs of answer. It is not quite clear that any definite theory of defense, can be applied satisfactorily to the second paragraph; and so far as any of the facts stated therein, separated from assumed conclusions of law, might be regarded as in any way available, the benefit thereof would be obtainable under the general denial and other paragraphs which remained in the record; and it appears that the trial court in its finding took account of the services of the ward and gave credit to the extent of their value. The fourth paragraph purported to answer as to that part of the claim “which accrued prior to the 24th of April, 1884,” which was six years before the date of the commencement of the action; and the answer was, in effect, simply that the part of the claim “which accrued” six years before the commencement of the action “did not accrue” within six years before the bringing of the action. This, of course, was self-evident, but it was not equivalent to an averment that the appellee’s cause of action, or any part of his cause of action, did not accrue within that period.
Ho sufficient defense was shown by the ninth paragraph of answer. The claim of appellee purported to be for necessaries provided for the ward at the request of the guardian and upon his promise that the appellee should be paid out of the ward’s estate; and the purpose of the action was to obtain from that source payment for the reasonable value of such provision. This answer does not show that the appellee did not provide necessaries for the ward upon such request and promise. It was not needed that such furnishing of necessaries be preceded by an- order of court therefor, in order to charge the ward’s estate; nor was it
The provision for the ward for which reasonable compensation is sought was all made during the guardianship of the guardian at whose request it was made, and no one appears by the answer in review to have been misled or deceived to his hurt or to the injury of any estate, by any conduct of the appellee stated in the answer. The answer does not show any facts which at any time in the lifetime of John Hart, or at any stage of the settlement of the estate of John Hart, deceased, would have sustained a claim for reimbursement of the ward’s estate from John Hart or his estate for money paid upon the appellee’s claim out of the estate of the ward. It was not improper that the whole trust fund should be paid over by the administrator of the deceased guardian’s estate to the successor in the guardian■ship, the settlement of the appellee’s claim being properly a part of the settlement of the guardianship. The answer shows that the entire estate of the ward in the hands of his several guardians was paid over to each successor in turn, and had come to the possession of the appellant. Erom
On the trial the court, over appellant’s objection, permitted the appellee to testify as a witness to conversations between him and John Hart, guardian, wherein the latter requested the witness to keep the ward at the home of the witness, and promised that if he would do so, he (the guardian) would pay the witness well for it out of the ward’s estate. One of these conversations occurred in 1864 and the other in 1877. If there was error in admitting such proof of the first arrangement between the appellee and the guardian, there was no recovery for the provisions made for the ward pursuant thereto; but the objection to the evidence of the verbal arrangement made in 1877 requires us to determine whether the appellee was a competent witness to testify to such a conversation between him and the guardian, the latter being deceased at the time of the in-'* troduction of the testimony, and the action being one brought by the witness against the successor in guardianship.
Our statute, §504 Bums 1901, being §274 of the code of civil procedure of- 1881, provides, that, “all persons, whether parties to or interested in the suit, shall be competent witnesses in a civil action or proceeding, except as herein otherwise provided.” Counsel for appellant, referring to §506 Burns 1901, being §276 of the code, admit that the exclusion contended for is not within the letter of the statute, but regard it as within its spirit. That section provides that in suits or proceedings in which an executor
The omission in the code of all reference to suits wherein a guardian is a party seems to indicate that the legislature no longer regarded the reason for the provision concerning suits wherein an executor or administrator is a "party as extending also to suits wherein a guardian is a party. Such omission, considered in connection with the provision of §504 Burns 1901, indicates the intention of the legislature no longer so to extend the provision as to incompetency to testify; at least, such significant omission excludes all conjecture, and renders immaterial any supposed similarity as to reasons for incompetency in cases in which an executor or adniinistrator is a party and those in which a guardian is a party. The length to which the policy of increasing competency to testify should be extended, and the character of the exceptions which should be made to such statutory latitude, are matters within the province of the legislature, and the court can not vary the
The court, over objection, permitted the appellee to testify to certain declarations of Samuel Hart, the ward, made while he lived at the home of the appellee, the specific objections being that the ward was not a party to the suit, and that, he being under guardianship, any declarations or conversations he had with the appellee would not bind the ward’s estate or be admissions against him. One of the conversations in question related to seventeen goslings which had been killed, concerning which the appellee testified that the ward said he killed them and threw them in a stump; that he was not always going to have them in the water where the horses had to drink. Another Conversation related to twenty-seven young turkeys which had died, and the appellee testified that the ward, in conversation with the witness, said that he gave them some salt and dough the day before, and that was what killed them. The ward was made a defendant by name, with .his guardian, the appellant, though the defense was properly made by the latter. Yet the ward was the person really interested in the event of the suit to charge his estate in the hands of the guardian.
It is a reasonable rule that the statements of the real party in interest relevant to the issue, and against his interest at the time of the making thereof, are admissible against the representative of his interest who is the nominal party, though the person who made the statements be not a party to the action, such statements not being admitted to establish the fact that the person making them is the real
In 1 Greenleaf on Ev., §180, it is said, that in general the admissions of any party represented by another are receivable in evidence against his representatives; but the declarations or admissions must have been made while the party making them had some interest in the matter, and they are receivable in evidence only so far as his own interests 'are concerned.
In Best on Ev., §529, it is said: “Self-disserving statements, etc., made by a party when his mind is not in its natural state, ought in general, to be received as evidence, and his state of mind should be taken into consideration by the jury as an infirmative circumstance. Thus a confession made by a prisoner when drunk has been received.” In many criminal actions the statements of the defendant made while intoxicated have been admitted in evidence against him, the question as to whether he was so intoxicated as not to understand, being left to the jury.
In Hariman v. Brown, 8 Leigh 697, it was held that the admission of one against his own interest, who could not be compelled to testify, ought to be received as if he were dead. It was said that the fact that the declarations were against the interest of the person making them “is a sanction for his veracity, which the law has always respected.” In the case now in hand the party in interest making the statements was of unsound mind, and incapable of managing his estate, and under guardianship, both at the time of the trial and at the time of the making of the statements.
On trial of a charge of murder, the prisoner, who was an ignorant orphan boy of crude and feeble mind and irresolute will, having been shown to have confessed his guilt in the presence of a furious crowd then threatening to hang him, it was held to be error to instruct the jury that the confession was convincing proof of his guilt. Butler v. Commonwealth, 63 Ky. 435.
In People v. Robinson, 19 Cal. 40, it was held that under an indictment for murder it was reversible error to admit evidence of words uttered by the defendant while asleep. “If the defendant was asleep, the inference is that he was not conscious of what he was saying, and words spoken by him in that condition constituted no evidence of guilt.”
Atchison, etc., R. Co. v. Potter, 60 Kan. 808, 58 Pac. 471, 72 Am. St. 385, was an action for personal injury of the plaintiff, a child. It was held error to reject evidence that he was heard by the witness a short time after the injury to say that he was hurt while attempting to climb or hold upon a passing train. It was said by the court on appeal that the trial court excluded the evidence on the ground that the plaintiff was incapable of understanding the nature of an oath, and that the court had previously refused to receive his evidence for the same reason. “In this,” it was said, “there was error. There is probably no more important kind of testimony-than the declarations of
Our statute renders void the contracts of persons of unsound mind under guardianship as such. They continue liable for their torts and for necessaries, though adjudged to be of unsound mind and incapable of managing their estates. The question as to permitting proof of their self-disserving declarations relating to their torts is not to be determined by the decision as to their competency to testify as witnesses, of which we will have occasion to speak further.
It could scarcely be contended that in any case the ravings of a maniac should be received as his admission of a fact against his interest. But the phrase “of unsound mind” covers every grade of mental derangement or incapacity, and, no matter what its kind or degree, if it be adjudged that thereby the person of unsound mind is incapable of managing his estate, this will furnish occasion for the appointment of a guardian, and while under such control he will be incapable of making a contract. In the case before us it was claimed by the appellant that the ward was capable of. rendering service for which his estate was entitled to compensation, and there was much evidence tending to show his capacity. It was adjudged that he rendered valuable services. It was while thus employed and being cared for by the appellee that, shortly after the occurrence of an act in connection with his services, he spoke the words relating thereto of which the appellee testified. We are not disposed to hold that the mere fact that a party is under guardianship as a person of unsound mind, and incapable of managing his estate, necessarily in all cases renders his admissions against his interest incompetent evidence, without reference to his actual mental state, as observed and learned by the court, when not introduced for
The special purpose of the evidence in question was not stated. Although the adjudication of the ward’s unsoundness of mind and incapacity to manage his own estate was at least prima facie evidence of such status as to all persons, being analogous to an adjudication in rem, yet on the trial there was a legitimate contention between the parties as to the actual mental and physical condition of the ward with reference to the reasonable value of keeping him, and his ability and disposition to be serviceable to the appellee on his farm. It is contended, in effect, for the appellee, that the language of the ward was admissible as an aid to such investigation. If it was admissible for any purpose, though not for such purpose as was expressed in the objection to its introduction, there could be no available error in overruling the objection; if it could be limited to a legitimate use by an instruction, it might be admitted; and if not restricted by instructions, this would be a separate question. It can not be denied that the expressions of the ward, so introduced, tended to show his disposition toward the domestic animals on the farm, and'might help in some degree to understand the degree of his intelligence for the performance of services which the appellant claimed were performed by him. So, whether or not the evidence was admissible to prove admissions, we are not disposed to undo the result of the trial because of its introduction.
A question is argued concerning the admission of certain testimony detailing conversations between John Hart, guardian, and the witnesses who were permitted to testify in relation thereto, to the effect that the appellee was keeping the ward for pay. Some of his testimony related to a time within the period for which, in the finding of the court, no allowance was made to the appellee, and therefore the
In Buffalo Loan, etc., Co. v. Knights Templar, etc., Assn., 126 N. Y. 450, 27 N. E. 942, 22 Am. St. 839, it was held that a guardian occupies a position analogous to that of an agent of an adult, and that the declarations of a guardian should be put upon a footing with those of an agent; a ward, however, having the advantage that the court will relieve him from the consequences of the guardian’s prejudicial conduct. It was said: “The office of a guardian is one of trust. He is empowered to act for the ward in the matters confided to him as guardian, in furtherance of his interests. Under the law of agency the admissions
Question is made here concerning the action of the court in rejecting certain offers to prove the value, per month, of the services of the ward for the appellee. Some of these offers related to times within the period which the court in its finding excluded in talcing the account, making no allowance to either party for that period. Proof of how much the ward’s services were worth in that period could not have benefited the appellant. In one instance of such exclusion the witness at some time between 1870 and 1885, had seen the ward milking and straining some milk, one Sunday morning, and testified that he (the witness) was acquainted with the reasonable worth of the services of farm hands at that time in the neighborhood. "We can not say that the court erred in regarding this as an insufficient basis on which to found an opinion of this witness as to the reasonable value of the service of the ward per month.
Another witness, who, about 1878 or 1880, as he passed along the road, had seen the ward hoeing corn in the adjoining field, and who, also, had seen the ward perform some farm work a number of years before that time, was not permitted to state his opinion as to the reasonable worth, per month, of the services of the ward as a farm hand. The court might, with reason, regard this witness as not having shown himself qualified to give an opinion which would materially aid in estimating the value of the services actually rendered by the ward during the period for which an allowance was made for such sérvice. The
Complaint is made of the refusal of the court to permit the appellant to ask certain of his witnesses whether or not the ward was a man of industrious habits, and what his habits were in the matter of work. The question before the court to which it was intended to direct this offered evidence related to the amount and value of services rendered by the ward. The objections to these rulings were not saved according to the rules laid down by the Supreme Court, the offers of proof being too late. Hoover v. Patton, 158 Ind. 521. The general characterization as an industrious man. of one suing on a quantum meruit for the value of his work and labor, by witnesses who were to base their opinion to that effect upon their occasional observations, would not have materially aided the court trying the cause, where the quantity and character of the service rendered and the time employed therein were to regulate the amount of recovery. If such opinion evidence was admissible, the court had grounds on which to conclude, in the exercise of its reasonable discretion, that the witnesses were not qualified sufficiently to express such opinions at the time of the trial. The court had the aid of much evidence of facts on which to base a conclusion as to the compensation for the ward’s services, and we can find no sufficient ground for interfering with its conclusion because of its rejection qf these opinions of witnesses formed on long past, casual obsei’vations.
The appellant called the ward í¿as a witness on behalf of the defendant” and caused him to be sworn as a witness, the appellee objecting for the reason that the ward was a person of unsound mind. After the witness, answering counsel
It had been proved that the witness had been adjudged to be a person of unsound mind, and incapable of managing his own estate, and had been placed under guardianship,
In Breedlove v. Bundy, 96 Ind. 319, where a party was introduced as a witness in his own behalf, and the opposing party objected on the ground of the insanity of the witness, it was held that the record made‘nine years before by two justices of the peace for his committal to a hospital for the insane was not sufficient, alone, to exclude the witness. It was said: “This is not like a case where the lunatic has been regularly adjudged insane by an inquisition and placed under guardianship, after which the presumption of insanity continues until he has been regularly adjudged sane and discharged from his guardianship.”
In Hull v. Louth, 109 Ind. 315, the court, speaking of an offer to examine as a witness Emma J. Taylor, said: “The court did not err in refusing to allow appellant to examine Emma J. as a witness. She had been adjudged to be insane, and was under guardianship. Her condition was no better at the time of the trial. Such persons are not competent witnesses. §497 B. S. 1881.”
In 1 Gfreenleaf on Ev., §566, it is said concerning inquisitions : “The general rule in regard to these documents, is, that they are admissible in evidence, but that they are
In Hoyt v. Adee, 3 Lans. (N. Y.) 173, it was held that an inquisition finding a person to be a lunatic, being analogous to proceedings in rem, is, as against persons not parties or privies, prima facie evidence of his insanity and consequent incompetency, upon objection made to him as a witness on the ground of lunacy, and is not conclusive evidence except against the parties immediately concerned and their privies.
If the offered witness is insane, his mental infirmity does not merely affect his credibility, but renders him incompetent, under our statute. The witness can not be rejected upon objection that he is insane without proof to that effect. The inquisition by which he was placed and continues under guardianship is evidence, being analogous to an adjudication in rem. The words “whether they have been so adjudicated or not,” in our statute relating to the incompetency of persons as witnesses, refer to the adjudication in a proceeding to establish unsound mind and procure the appointment of a guardian. §2714 et seq. Bums 1901. If there has been no such investigation and adjudication, and the person offered be then found by the court to be insane, he is incompetent. The case before us did not involve such a question, or the mode of procedure for its determination. The person for whom a guardian is appointed in a statutory inquisition for such purpose is already adjudged to be an insane person within the ¿leaning of the statute concerning
The conclusions of law stated upon the facts specially found seemed to be sustained by the decision of the Supreme Court on the former appeal, holding the complaint sufficient.
Judgment affirmed.