Cline v. Lindsey

• Decision Date: 08 April 1887
• Citation: 11 N.E. 441,110 Ind. 337
• Parties: Cline and others v. Lindsey and others.
• Court: Indiana Supreme Court

110 Ind. 337

11 N.E. 441

Cline and others

v.Lindsey and others.

Supreme Court of Indiana.

April 8, 1887.

Appeal from circuit court, Union county.

Thomas W. Bennett and H. C. Fox, for appellants. Thomas D. Evans and L. H. Stanford, for appellees.

ZOLLARS, J.

Lewis J. Cline died on the twenty-sixth day of January, 1884. By his last will, executed on the twenty-second day of that month, he bequeathed all of his property to appellants, children of a brother. Appellees brought this action to set aside that will on the ground that, at the time it was executed, the testator was a person of unsound mind, and hence incapable of making a valid will. With the will out of the way, appellees and the father of appellants are entitled to the property left by Lewis J. Cline, as his heirs at law, being his brothers, sisters, and the descendants of deceased sisters. Upon a verdict of the jury in favor of appellees, the court below, over appellants' motion for a new trial, set aside the will. Appellants ask for a reversal of the judgment upon the alleged error of the court in charging the jury.

Our attention is first called to the twentieth instruction given by the court. It is as follows: “(20) In weighing the testimony of witnesses, the jury should consider their capacity to understand the facts about which they testify,-their opportunity of knowing the mental condition of the testator. The testimony of the testator's neighbors, who have long been acquainted with him, and have had frequent intercourse with him, and whose attention has been particularly called to the testator, who have had frequent opportunities of observing his mind, is entitled to greater weight than that of a witness of equal sagacity whose opportunities were more limited. The facts upon which the witnesses' opinions are based have been given you, and of these you are the judges, weighing the facts as they have been given, in order to determine the condition of the testator's mind. You are to weigh each particular incident and fact stated to you by the witnesses, and to determine from the whole whether or not the testator, at the time of the execution of the will, was or was not of sound mind. You are to take into consideration the will itself and its provisions, its unjustness or harshness, if any exist, to determine the soundness or unsoundness of the testator's mind.” The objection urged to the instruction by appellants' counsel is that the court thereby invaded the province of the jury by charging, as a matter of law, that the testimony of the testator's neighbors, who had long been acquainted with him, was entitled to more weight than the testimony of other witnesses of equal sagacity whose opportunities had been more limited.

Considered without reference to any other charge that may have been given, the above instruction, in our judgment, is open to the objection urged against it. It may be true, as a matter of fact, that the testimony of the neighbors of the testator, who had had the advantages and opportunities named, was entitled to more weight than the testimony of other witnesses of equal sagacity who had had less opportunities, because of less acquaintance with the testator. But that was a fact to be determined by the jury as a fact, and not by the court as a question of law. The instruction, it will be observed, leaves out of view the essential element of credibility. The neighbors of the testator may have had greater opportunities, and may have been of equal sagacity with other witnesses having had less opportunities, and yet be less worthy of credence. Nor does it follow necessarily, and as a matter of law, that the testimony of one of two witnesses of equal sagacity is entitled to greater weight simply because he may have had more acquaintance with, and more frequent opportunities to observe, the person whose sanity is in question. The witness who has had less acquaintance and less opportunities may yet be the most reliable witness, because of some special training, experience, or habit of closely observing persons whom he meets. In all such cases it is for the jury to determine for themselves to what witness they will give the most credence. They have a right to consider the fact that some of the witnesses may have had greater opportunities than others. The court may instruct them that they have such right, but it ought not to invade their province, and undertake to determine for them what witness is the most relihble.

The latter portion of the instruction, in which the jury were charged that they should weigh the facts given by the witnesses as the facts upon which they based their opinions, does not relieve the instruction from the objection urged by appellants' counsel. In the first place, the charge directing the jury that the testimony of the one class of witnesses was entitled to the greater weight is general, and embraces all that those witnesses testified to; and, in the second place, it was impossible for the non-expert witnesses, giving their opinions as to the insanity of the testator, to state to the jury everything upon which those opinions were based. If they could have stated everything upon which they based their opinions, the opinions would have been incompetent. The rule which allows such opinions is a rule of necessity, and rests upon the proposition that there may be something about the looks, deportment, etc., of a person which may contribute to the conclusion that he is of unsound mind, which cannot be described in words by the witness. Carthage Turnpike Co. v. Andrews, 102 Ind. 138, 1 N. E. Rep. 364.

That the instruction was erroneous because the court thereby invaded the province of the jury, and to the prejudice of one of the parties, by directing the jury that the testimony of one class of witnesses was entitled to more weight than the testimony of another class, is well settled by our cases. Fulwider v. Ingels, 87 Ind. 414, and cases there cited; Voss v. Prier, 71 Ind. 128;Dodd v. Moore, 91 Ind. 524, and cases there cited; Works v. Stevens, 76 Ind. 181;Woollen v. Whitacre, 91 Ind. 502, and cases there cited; Nelson v. Vorce, 55 Ind. 455;Goodwin v. State, 96 Ind. 550, (569,) and cases there cited; Unruh v. State, 105 Ind. 117, 4 N. E. Rep. 453, and cases there cited; Morris v. State, 101 Ind. 560, 1 N. E. Rep. 70, and cases there cited; Bird v. State, 107 Ind. 164, 8 N. E. Rep. 14, and cases there cited; Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433. A part of one of the instructions approved in the case of Rush v. Megee, 36 Ind. 69, (84,) is similar to the instruction here condemned, but the probability is that in that case the attention of the court was not called to the objection urged here.

The instruction as given is erroneous; but it does not follow that, because of the error of the court in giving it, the judgment must be reversed. It is well settled that, to justify this court in reversing a judgment, the record must affirmatively show that there was error in the proceedings below, and that the error was, or probably was, prejudicial to the party complaining here. For example, a judgment will not be reversed on account of the erroneous admission of evidence that does not harm the party complaining. Binns v. State, 66 Ind. 428;Powers v. State, 87 Ind. 144;Rothrock v. Perkinson, 61 Ind. 39;Vanvalkenberg v. Vanvalkenberg, supra. A judgment will not be reversed because a demurrer has been sustained to a good paragraph of a pleading, which sets up a cause of action or a defense admissible under another paragraph of the same pleading. Board Com'rs, etc., v. Jameson, 86 Ind. 154;Fuller v. Wright, 59 Ind. 333;Epperson v. Hostetter, 95 Ind. 583;Luntz v. Greve, 102 Ind. 173;Mason v. Mason, 102 Ind. 38;Landwerlen v. Wheeler, 106 Ind. 523, 5 N. E. Rep. 888. A judgment will not be reversed because of the refusal of instructions which contain correct statements of the law, if the substance of them are embraced in others given. Indiana Manuf'g Co. v. Millican, 87 Ind. 87;City of Indianapolis v. Murphy, 91 Ind. 382;Bronnenberg v. Coburn, ante, 29, (present term;) Barnett v. State, 100 Ind. 171. The refusal of a correct instruction is not available for a reversal of the judgment by this court, if the complaining party was not injured thereby. Louisville, N. A. & C. Ry. Co. v. Krinning, 87 Ind. 351. And so a judgment will not be reversed on account of the giving of an erroneous instruction, if the instruction was favorable to the party complaining here, or worked no injury to him. Smith v. State, 28 Ind. 132;Rollins v. State, 62 Ind. 46;Worley v. Moore, 97 Ind. 15;Cleveland, etc., R. Co. v. Newell, 104 Ind. 264, 3 N. E. Rep. 836.

It appears here that an erroneous instruction was given, but it is not shown by the record that the giving of it was prejudicial to the appellants. The evidence is not in the record; nor is there anything in the record showing, or tending to show, that the witnesses spoken of in the charge as the neighbors of the testator were witnesses below in behalf of appellees. For aught that is shown by the record, they may have been called by, and may have testified in behalf of, appellants, that the testator was a person of sound mind, and hence capable of making the will. This court cannot assume anything not affirmatively shown by the record, in order to overthrow the judgment. The record does not show directly nor indirectly, and we cannot presume, that appellants were injured by the instruction.

It is contended by counsel for appellees that this instruction should be considered in connection with a subsequent one given by the court; and that, when the two are thus considered together, they state the law correctly, and that the objection above discussed is thus removed. Having reached the conclusion that the judgment should not be reversed on account of the instruction under examination, it is not necessary for us to set out the instruction referred to by counsel, nor enter upon an...