Prentis v. Bates

• Decision Date: 04 October 1892
• Citation: 93 Mich. 234,53 N.W. 153
• Court: Michigan Supreme Court
• Parties: PRENTIS et al. v. BATES et al.

53 N.W. 153

93 Mich. 234

PRENTIS et al. v. BATES et al.

Supreme Court of Michigan

October 4, 1892

On rehearing. For decision on appeal, see 50 N.W. 637.

MONTGOMERY, J.

A rehearing was ordered in this case after full consideration the members of the court who took part in the former decision being convinced that the questions involved deserve re-examination. This rehearing has been had, and we feel constrained to depart from some of the conclusions stated in the former opinion, which, while having the support of respectable authority, we find to be in conflict with some of the former rulings of this court, which for the time escaped attention. For convenience we will consider the questions involved in the same order adopted in the former opinion.

1. The first question considered was whether counsel for the contestants abused his privilege in his opening statement to the jury. On the former hearing the sitting members of the court were impressed with the view that the trial judge had not sufficiently restricted contestants' counsel in this case, but a fuller argument and examination have convinced us that the statements of counsel, both as to the propositions of law contended for in his opening, and as to the facts which he expected to prove, were made in the utmost good faith. The will offered for probate was made in favor of the relations of decedent's husband, to the exclusion of her own nieces and nephews, and counsel for contestants referred to this fact, and claimed that it was an unnatural will, and that in such cases the law will draw an inference that the will was procured by fraud; and also argued, in the same connection, that the burden of proof in such cases would rest upon the proponents. The question of undue influence was afterwards eliminated from the case by the trial judge. It is unnecessary to determine whether the contestants' position on the law of the case was wholly sound or not, as counsel had the right, under the rulings of the court, to state in good faith his claims as to the law in so far as it was necessary to give the jury an understanding of his theory. As was said in Fosdick v Van Arsdale, 74 Mich. at page 305, 41 N.W. 931 "Counsel have the right, both in opening the case to the jury before the testimony to support their case is offered and when closing the argument after the testimony is in, to state to the jury that they claim the law to be thus and so." This ruling, it is believed, is in accord with the general understanding of the profession, and certainly is no departure from the practice which has obtained at the circuit from the time of the adoption of the present rules of court. This right would be nothing more than a mere shadow, or, worse, a dangerous share, if, after counsel has taken his position in good faith, he is to be made the guarantor of his views of the law on every question presented; and, if in the end it should be found that he is mistaken on some point of minor importance, the judgment in his favor is to be vacated for this reason. It must be an exceedingly plain case of an abuse of privilege which will justify the setting aside the verdict on the ground of improper opening either in statement of the law or fact. Nothing short of bad faith or a gross misconception of what is admissible, resulting in bringing to the attention of the jury matters wholly irrelevant, and of a nature calculated to create so profound an impression that the charge of the court cannot eliminate the prejudice produced, will justify an appellate court in vacating a judgment on such grounds; and, in determining whether such an error has been committed, it is believed to be entirely safe to credit the jury with at least average intelligence. People v. Gosch, 82 Mich. 29, 46 N.W. 101; Porter v. Throop, 47 Mich. 313, 11 N.W. 174; Campbell v. Kalamazoo, 80 Mich. 655, 45 N.W. 652. Tested by this rule, we do not think any error was committed by counsel in his opening, either in stating the law or facts which he expected to prove. The statement of the facts expected to be proved by Dr. Gallagher, quoted in the former opinion, were termed "extraordinary." A careful examination of the testimony actually introduced convinces us that the contestants made the proposition in good faith, and, although the proof of what was said was not as full as the opening statement, yet the substance of what was stated, namely, that Mrs. King mistook pills for flies, and mistook a fly for the pill, was testified to by the witness.

2. In the former opinion certain testimony was criticised as not in itself tending to show want of testamentary capacity. While this is true of the testimony quoted, yet a more full argument and citation of authorities convinces us that it was competent to show by witnesses that decedent was erratic, eccentric, rambling and disconnected in her conversation, flighty in her notions, unsettled; that her manner was excitable; that she could not comprehend connected conversation; that she ran out about the house, screaming, with her dress open in the front, etc. These circumstances, of themselves, might not have been sufficient to show testamentary incapacity, but they were competent to be considered with the other evidences offered in the case for that purpose. It cannot be contended in this case that there was not enough testimony to justify submitting to the jury the question of mental incapacity, and, where this is the case, circumstances are often admissible which may coexist with a perfectly sound mind. It seldom occurs that any one circumstance or act of a party will, of itself, show insanity. On the contrary, the judgment of his acquaintances, as well as of medical experts, must be and is made up from circumstances and acts trivial in themselves, but which, when considered together, carry conviction of mental unsoundness. Reference is made to the case of Fraser v. Jennison, 42 Mich. 206, 3 N.W. 882, and language may be found in the opinion of the court in that case which apparently gives some support to the contention of proponents. But we think this court has never evinced the purpose of creating one rule of evidence which shall apply in will cases, but which is not to be adopted in any other. It is much better than that any such incongruity should become ingrafted in our law that it be left to the trial judge to carefully guard the rights of legatees by full and adequate instructions upon the degree of mental competency requisite to make a valid will, accompanied by any necessary caution against giving undue weight to circumstances which, while more consistent with insanity than sanity, yet may coexist with either condition of mind. If it be the rule, as this court has repeatedly held, that inferences from proven facts are to be drawn by the jury, and not by the court, it follows that in making proof of mental incompetency any fact which is more consistent with that theory than with the theory of mental soundness must be admissible, and the duty of drawing an inference therefrom is one which an appellate court should not undertake, but which rests with the jury impaneled in the trial court. As was said in Perrott v. Shearer, 17 Mich. 54: "When evidence is submitted to a jury as bearing upon a certain point, it is for them, and not for the court, to determine whether it tends to establish that point or not. Whether it does so, in their opinion, may depend, not alone upon that particular item of evidence, but upon that evidence considered in its relation to other evidence." In Wessels v. Beeman, 87 Mich. 489, 49 N.W. 483, it was said: "We have frequently held that the tendency of the testimony to prove a certain fact is exclusively for the jury, and it is error for the circuit judge to add the weight of his opinion as to what it tends to prove, when there is a dispute in the testimony upon a point." In Black wood v. Brown, 32 Mich. at 107, it was said: "What certain statements tend to prove, or the weight to be given them, are proper questions for the jury, and the court cannot instruct them as to the weight or importance to attach to any particular part of the testimony. To do so would be but usurping the proper province of the jury." See, also, Hayes v. Homer, 36 Mich. 374. As was stated in the former opinion, several witnesses were permitted to express an opinion as to the mental capacity of Mrs. King to make the will in question. It was strenuously insisted upon the argument for a rehearing that the witnesses in question showed their competency to speak upon the question, and that the weight to be given to their testimony was for the jury. The language of the court in the former opinion upon this subject was too broad in excluding the testimony of the witnesses Austin, Hanley, French, and Weitz. Their testimony, as has been stated, was competent to be judged by the jury, and, upon fuller consideration, we are not inclined to hold that, as matter of law, it was not competent to take their opinion, although their opportunities for judging as to her capacity were certainly not such as to entitle their testimony to any great weight. But we are all of the opinion that the testimony of the witness John Scott did not show that he had such an opportunity of judging of Mrs. King's mental capacity as entitled his opinion to be received as evidence.

It is contended on behalf of the contestants that the jury are to be made the judge in all cases of whether the acquaintance of the witness with the party whose sanity is in question was such as to entitle their opinion to weight. In any case where they have shown sufficient acquaintance with the party as to render their opinion of any value whatever, this is undoubtedly true, and it can be said on behalf of such a rule as is contended for that it is one...