Daniel v. Dixon

• Decision Date: 05 March 1913
• Citation: 77 S.E. 305,161 N.C. 377
• Parties: DANIEL v. DIXON et al.
• Court: North Carolina Supreme Court

77 S.E. 305

161 N.C. 377

DANIEL v. DIXON et al.

Supreme Court of North Carolina

March 5, 1913

Appeal from Superior Court, Pitt County; Bragaw, Judge.

Action by Sidney Daniel against E. S. Dixon and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Argumentative instructions are properly refused.

This action was brought to cancel two deeds made by Mrs. A. G. Daniel to her daughter, Ida Dixon, on the ground of mental incapacity of the grantor and undue influence exercised in procuring the deeds.

Issues were submitted to the jury, and answered as follows:

"(1) Was Mrs. A. G. Daniel, the grantor named in the paper writings referred to in the pleadings, so lacking in mental capacity November 30, 1904, that she could not make a deed? Answer: Yes.

"(2) Did the defendants procure the said paper writings to be signed by Mrs. A. G. Daniel by fraud or undue influence, as alleged?" No answer.

"(3) Was the consideration for the deed in fact paid or performed?" No answer.

"(4) What has been the average rental value of the lands described in the pleadings from November 30, 1904? Answer: $150."

Judgment for plaintiff and appeal by defendants.

Jarvis & Blow and Harry Skinner, all of Greenville, for appellants.

Julius Brown and Ward & Pierce, all of Greenville, for appellee.

WALKER, J. (after stating the facts as above).

There are 17 exceptions to the evidence, and all of them fall within one of three classes. (1) If a question to which objection is taken is not answered, and there is nothing to show what evidence was expected to be elicited, the objection fails. State v. Leak, 156 N.C. 643, 72 S.E. 567. (2) If a competent question is objected to and ruled out, but is afterwards asked and answered, the same result follows. Gossler v. Wood, 120 N.C. 69, 27 S.E. 33. (3) Declarations of third persons, which are excluded as hearsay, and acts of the same nature, which are inadmissible, as leading the court into many collateral inquiries, and excluded under the rule expressed in the law maxim, "Res inter alios acta alterinocere non debet." (Things done between strangers ought not to injure those who are not parties to them.) Co. Litt. 132; McKelvey on Evidence, pp. 129, 203. It is not what is asked a witness that constitutes evidence, but the answer, viewed in connection with the question, and if we do not know what the answer will be, we cannot say whether or not it would be competent, and therefore whether any harm has befallen the party by its exclusion (Bost v. Bost, 87 N.C. 477), and, so if a rejected question is afterwards answered, the party has suffered no harm, for he has the full benefit of the evidence, the same as if it had originally been admitted. One answer is sufficient, as the evidence does not acquire any greater force or weight, in the view of the law by repetition. It is not necessary to consider these exceptions seriatim, as they are plainly untenable under the rules above stated, and are therefore overruled collectively. In doing this, we concede the principle, and are not inadvertent to it, that mental capacity or incapacity may be shown by opinion or nonexpert testimony. While the writer did not altogether agree with the court in some of the cases establishing the rule, it has been settled that such testimony is admissible. Whitaker v. Hamilton, 126 N.C. 465, 35 S.E. 815; In re Peterson, 136 N.C. 22, 48 S.E. 561; Brazille v. Barytes Co., 157 N.C. 454, 73 S.E. 215; Taylor v. Security Co., 145 N.C. 383, 59 S.E. 139, 15 L. R. A. (N. S.) 583, 13 Ann. Cas. 248.

It was not reversible error to refuse the motion of defendant to add the words, "or waived," to the third issue, as the jury found with the plaintiff upon the first issue, which finding was decisive of the case, and the error, if any, was harmless. There was no use in inquiring whether the condition of the instrument had been waived if it was not her deed, and the same may be said as to the nineteenth exception, which was taken to the submission of the second and third issues. It was immaterial to inquire as to fraud or undue influence if Mrs. Daniel did not have sufficient mental capacity to execute the deed. Perry v. Insurance Co., 137 N.C. 402, 49 S.E. 889; Sprinkle v. Wellborn, 140 N.C. 163, 52 S.E. 666, 3 L. R. A (N. S.) 174, 111 Am. St. Rep. 827.

Defendant's first and third prayers for instructions were argumentative and therefore might well have been refused, but they were substantially given in the charge. The presiding judge was not required to pursue the language of the prayers. He had the right to choose his own words in stating the law arising upon the evidence, and if a proper instruction embodied in a prayer is given in substance and effect, without its force being materially weakened by reason of any change in the phraseology, it is all the law requires and all the party can ask. Lyne v. Telegraph Co., 123 N.C. 129, 31 S.E. 350; Griffin v. Railroad Co., 138 N.C. 55, 50 S.E. 516. Referring to this subject in Cogdell v. Railroad Co., 132 N.C. 852, 44 S.E. 618, the court laid down this rule: "It is well settled that the court is not required to charge the jury in the very words of a prayer for instruction; but, if the prayer contains a correct statement of the law as applicable to the facts of the case, the court must give it at least substantially, and cannot substitute an instruction of its own for it, if thereby the instruction as requested to be given is (materially) weakened or diminished in its force. While the court is not required to use the words of the prayer, it must not change the substance of it in a way calculated to impair its force. The law does not regard the form, but even the form should not be so modified as to impart to...