Burchill v. Hermsmeyer

• Decision Date: 19 February 1921
• Docket Number: (No. 9436.)
• Citation: 230 S.W. 809
• Parties: BURCHILL et al. v. HERMSMEYER.
• Court: Texas Court of Appeals

230 S.W. 809

BURCHILL et al. v. HERMSMEYER.

(No. 9436.)

Court of Civil Appeals of Texas. Fort Worth.

February 19, 1921.

Rehearing Denied April 9, 1921.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by H. C. Hermsmeyer against Belle M. Burchill and others. From judgment for plaintiff, defendants appeal. Affirmed in part, and reversed and remanded in part.

Templeton & Milan, of Fort Worth, for appellants.

Slay, Simon & Smith and F. M. Brantly, all of Fort Worth, for appellee.

CONNER, C. J.

This is an appeal from a judgment in favor of appellee, H. C. Hermsmeyer against the appellants, Belle M. Burchill and the Fort Worth Development Company, for the sum of $10,000, which appellee alleged had been advanced and paid by him upon an oral promise of the appellant Belle M. Burchill to return to him upon his request to do so, but which appellant claimed had been paid to her for the benefit of the development company upon written contracts for stock, and which had been used in exploring a 40-acre tract of land near the city of Fort Worth for oil and gas.

The transcript of the pleadings, bills of exception, etc., are very voluminous, as also are the statement of facts and briefs of counsel in this court, and we cannot, therefore, within reasonable limits, detail all of the proceedings, but the case has been before us once before on a former appeal (reported in 212 S. W. 767), where may be found a statement of the particulars and of our conclusions upon the questions presented on that appeal. After the reversal directed upon the former appeal, the plaintiff, Hermsmeyer, amended his pleadings, a sufficient statement of which, so far as pertinent, will be made in connection with the questions hereinafter discussed. The evidence on the last trial was very largely the same as on the first, but, in harmony with the amended pleadings so authorizing, the court submitted the case upon the following special issues and charge, which were answered by the jury as indicated, and upon which answers the judgment appealed from is predicated, to wit:

"Gentlemen of the jury: This case is submitted to you upon special issues and you will true answers make to the following questions:

"Issue No. 1: At or prior to the time of the execution of the several instruments in writing, introduced in evidence and under which H. C. Hermsmeyer paid over the several sums of money to Belle M. Burchill, was plaintiff's mind, from any cause, in such a condition as that he did not understand the nature, quality, and consequences of his acts in entering into said contracts subscribing for the shares of stock in the Fort Worth Development Company? Answer: Yes.

"Issue No. 2: At or prior to the dates of the several purported written instruments introduced in evidence, and under and by virtue of which plaintiff paid over the several sums of money to Belle M. Burchill, as shown by the testimony, did the said Belle M. Burchill state or represent to plaintiff that if he would advance said sums of money that she, the said Belle M. Burchill, would give him security therefor, and if plaintiff decided not to take stock in the Forth Worth Oil Development Company, she would refund or repay to him said money? Answer: Yes.

"Issue No. 3: If you answer the preceding question in the negative, you need not answer the following questions, but if you answer said issues in the affirmative, then answer:

"(a) Did the said Belle M. Burchill, at the time she made said statement or representations, intend to comply with the same? Answer: No.

"(b) Did plaintiff rely upon said statements or representations, if any, and was he induced thereby to pay over said sums of money? Answer: Yes.

"You are instructed that the evidence admitted in relation to mediumistic predictions and revelations was admitted only for the purpose of showing, if you believe that it does show, the state and condition of plaintiff's mind at the time of the several transactions testified about, and you will not consider said testimony for any other purpose except for the purpose for which the same was admitted as above stated, it being for the jury to determine whether or not it has any effect upon the issue above referred to. The burden is upon the plaintiff to prove the affirmative of the above issues by a preponderance of the evidence, and, unless he has done so, you will answer them in the negative. You are the exclusive judges of the credibility of the witnesses, of the weight of the evidence, and of the facts proved.

"Additional special issues requested by defendants:

"Issue No. 1: What was the purpose of the assignment by the Palo Pinto Oil Company to H. C. Hermsmeyer of its claim against the Fort Worth Oil Development Company? Answer: For the purpose of securing H. C. Hermsmeyer.

"Issue No. 2: Was said assignment executed by said Palo Pinto Oil & Gas Company with the knowledge and consent of the defendants for the purpose of keeping said debt alive in the hands of plaintiff as security for the repayment of his money, or was said assignment given for some other purpose? Answer: Given with consent of defendants as security for repayment of plaintiffs' money."

By appropriate assignments and propositions, particularly by the first proposition under appellants' first assignment, and by appellants' twelfth and thirteenth assignments of error, the finding of the jury on the first issue is assailed on the ground that the evidence is insufficient to warrant the finding to the effect that plaintiff was of unsound mind to such an extent as to invalidate his written contracts for stock. We are of opinion that the proposition and assignments referred to must be sustained. The evidence relied upon in support of the finding and of appellee's amended pleading, to the effect that the written subscriptions for stock referred to were secured at a time and under circumstances when his mind was incapable of understanding their nature and effect, is for the most part testimony showing appellee's belief in spiritualism, and his acts in following spiritualistic communications and the opinion of two physicians, to the effect that a person entertaining a belief that disembodied spirits, through a medium, may convey knowledge of future and hidden things, was of unsound mind. On the former trial this evidence was relied upon as supporting allegations that by such means appellant Belle M. Burchill had been enabled to fraudulently secure the written contracts, but in deference to what we said on the subject on the former appeal, and in view of the fact, as we assume, that the trial court concluded that the evidence failed to so connect Belle M. Burchill with the spiritualistic communications as to authorize an inference of fraud, the charge, as above shown, on the last trial, limited the evidence mentioned to the sole issue of appellants' mental capacity.

Appellee's able counsel has not referred us to any decision which holds that a belief in spiritualism constitutes the subject insane or incapable of making a valid contract. On the contrary, all of the authorities that we have been able to examine hold otherwise. In the case of Middleditch v. Williams, a New Jersey decision, reported in 45 N. J. Eq. 726, 17 Atl. 826, 4 L. R. A. 738, it was held that a belief that there can be communications between spirits of the dead and living is not an insane delusion. A number of cases are cited which are not available to us. One of the quotations made with approval from another New Jersey case (Lozear v. Shields, 23 N. J. Eq. 509) is that:

"Mania does not, per se, vitiate any transaction, for the question is whether such transaction has been effected by it. Where a pure defense of mental incapacity is interposed, I think the true test in this class of cases is whether the party had the ability to comprehend, in a reasonable manner, the nature of the affair in which he participated. This is the rule in the absence of fraud, for fraud, when present, introduces other principles of decision."

Another quotation, made by the same case from a Maryland decision (Brown v. Ward, 53 Md. 376, 36 Am. Rep. 422), is as follows:

"The court cannot say, as matter of law, that a person is insane because he holds the belief that he can communicate with spirits [of the dead], and can be and is advised and directed by them in his business transactions and in the disposal of his property."

And it was said that the same view was expressed in the case of Otto v. Doty, 61 Iowa, 23, 15 N. W. 578, and also in Re Smith's Will, 52 Wis. 543, 8 N. W. 616, 9 N. W. 665, 38 Am. St. Rep. 756. The case to which we have referred was one involving the mental capacity of a testator to make a will, but it is well established that the mental capacity to make a will and that necessary to make a valid contract is substantially the same. In Am. Digest of Decisions, under the title of Wills, 49 Cent. Dig. col. 96, par. F, numerous cases are cited to the effect that a belief in spiritualism does not of itself incapacitate to make a valid will, or that a belief in witchcraft is not evidence of such insanity as to disable a person from making a will. A number of other cases are also cited in the authority last referred to of like effect, and when these authorities are considered in the light of the testimony in this case, we feel no hesitancy in saying that the mental capacity of appellee, H. C. Hermsmeyer, is not shown to have been so deficient as to incapacitate him to substantially understand and comprehend the transactions detailed by him, or to relieve him of the legal effect of his written subscriptions for stock. On the trial he testified at great length, both on direct and on cross-examination, and his testimony was entirely coherent and apparently free of any taint of insanity. Among other things, he testified:

"I have never been confined in an asylum. I do not claim to be crazy, not that I know of, anyway. I do not claim that I was...