Dimmitt v. Robbins

• Decision Date: 25 June 1889
• Citation: 12 S.W. 94
• Parties: DIMMITT <I>v.</I> ROBBINS.
• Court: Texas Supreme Court

12 S.W. 94

DIMMITTv.

ROBBINS.

Supreme Court of Texas.

June 25, 1889.

Commissioners' decision. Appeal from district court, Travis county.

Action by J. R. Robbins against the estate of J. J. Dimmitt, deceased, on a money demand. Judgment for plaintiff, and defendant appeals.

Sneed & Terrell and Hughes & Key, for appellant. Walton, Hill & Walton, for appellee.

HOBBY, J.

We have been unable to find in our researches among the great multitude of reported civil causes any case which in its facts is similar to this. The suit was brought by the appellee, plaintiff below, on the 9th of August, 1877, against J. J. Dimmitt, to to recover $2,500 alleged to have been loaned by appellee to Dimmitt. Dimmitt denied the indebtedness, and alleged that if he ever agreed or promised to pay said sum he was in duress at the time, and held in unlawful custody, and in great fear of serious bodily injury, and of losing his life, by two men to him unknown, who, armed with deadly weapons, were threatening to kill him, and were making an unlawful and violent assault upon him; that by reason of such duress, threats, and violence he was put in great fear of personal injury and of death, and his will and volition destroyed, and he rendered incapable of entering into a valid contract or making a binding promise; (2) that if he ever undertook, promised, or agreed to pay plaintiff any money, which is denied, he was at the time in duress, and held in unlawful custody, and in great fear of losing his life, by two men to defendant unknown and by plaintiff; that with the knowledge, consent, and approval of plaintiff, and by his procurement, and at his instigation, said two men, to defendant unknown, made an assault upon him with deadly weapons, and threatened to take his life unless he paid them a large sum of money, and put him in duress, and great fear of losing his life, and of serious bodily injury; that, while said two men were assaulting defendant and holding him in duress and unlawful custody, plaintiff handed them an envelope or package, pretending that it contained $2,500 in money, and pretending that he was paying it as a ransom to secure the release of defendant, when in truth and in fact it did not contain any such sum of money, and was not in good faith given by plaintiff as a ransom for defendant, but was given to plaintiff's confederates and co-conspirators, who were assisting plaintiff in his wrongful and fraudulent efforts to impose upon and deceive defendant and make him believe that he had been attacked by robbers, unknown to plaintiff, and that plaintiff had actually and through proper motives given them $2,500 as a ransom for defendant's life; that the said acts of plaintiff and his confederates, the said two men to defendant unknown, were done and committed by previous agreement and understanding entered into by and between them for the wicked, wrongful, and fraudulent purpose of imposing upon and deceiving defendant, and causing it to appear, and him to believe, that he had in fact been assailed by robbers, without the knowledge and consent of plaintiff, and that plaintiff had paid $2,500 to ransom him, and thereby to enable plaintiff to demand and receive from defendant said sum of $2,500. Wherefore defendant says that plaintiff, being a confederate of and a conspirator with said two unknown men and pretended robbers, is not entitled to recover upon any promise, direct or implied, which defendant may then and there have made. The plaintiff Robbins filed a motion for a change of venue on July 19, 1881, sworn to in December, 1881, upon the ground that there existed so great a prejudice against him in Williamson county that he could not obtain a fair trial of the cause, etc. The cause was transferred to Travis county by order of the court, the order reciting that it was made on motion of the defendant. On April 15, 1884, a motion was filed in the district court of Travis county to strike the cause from the docket, because it appeared to have been changed from Williamson to Travis, on motion of defendant, when in fact no such motion was made by him. This motion was accompanied by affidavits verifying the fact stated in the motion. On March 16, 1885, plaintiff filed first amended original petition, alleging the death of defendant J. J. Dimmitt, and that Mrs. M. L. Dimmitt was his surviving wife, and had qualified to administer the community estate of said J. J. Dimmitt and herself, and making her a party defendant herein, and in addition to the prayer of the original petition prayed for judgment against said community estate, and for interest after demand, and for general and special relief. Mrs. M. L. Dimmitt answered by general denial, and by adopting the answer of J. J. Dimmitt. She also pleaded the statute of limitations, by exception and plea, to any recovery of interest for more than two years prior to the filing of the amended petition. The district judge being disqualified, and also the special judge, who had been previously appointed, Hon. A. H. Graham was duly appointed, and qualified as special judge to try the cause, and on the 25th, 26th, 27th, 28th, and 30th March, 1885, the cause was tried, which resulted in a verdict and judgment for plaintiff Robbins for the sum of $2,500 principal, and $1,528.21 interest thereon from August 9, 1877, aggregating the sum of $4,028.21, with interest from the date of judgment at 8 per cent., which was decreed to be a valid claim against the community estate of J. J. Dimmitt. From this judgment this appeal is prosecuted, upon 15 assignments of error which we do not think it necessary to consider seriatim.

The first and second assignments complain of the refusal of the court to strike the cause from the docket of the district court of Travis county, because it appeared that the order of the district court of Williamson county, reciting that the change of venue was made on motion of the defendant, was not true in fact, the defendant not having made such motion. The order of the district court of Williamson county, changing the venue, clothed the district court of Travis county with jurisdiction, unless it appeared that this order was not predicated upon some one or more of the statutory grounds authorizing the change to be made. The recital in the order of the court, that it was upon motion of the defendant, might have been stricken out, and still the district court of Travis county would have had jurisdiction. The original papers transferred, disclosed the fact that its jurisdiction attached upon the motion of the plaintiff, supported by proper affidavit, as provided by the statute. If there was no power in the district court of Williamson county to make the order, it is not shown by the motion, or the assignments, or any bill of exceptions taken at the time to the order changing the venue.

During the progress of the trial Robbins was asked, upon cross-examination by defendant's counsel, if he had not stated out of court to one David McFaddin and one J. N. McFaddin "that no person knew prior to the robbery that you had the $2,500 in money along with you except you and your wife;" to which the witness replied that "he did not tell McFaddin that nobody knew he had this money but himself and wife, and knew exactly what he told McFaddin," etc. He was also asked if he had not made a similar statement to John McFaddin, to which he replied that if he said anything to said John McFaddin "it was likely that he had told him that no one else except his wife knew that he had taken the money along with him." The depositions of three parties were then offered by the defendant, to the effect that "Robbins had about 10 days or two weeks after the robbery said to them that he had about $2,500 with him on the trip; that no person knew prior to the robbery that he had the money with him except his wife." To the introduction of this evidence by the defendant the plaintiff's counsel objected, on the ground that the matter of fact involved in the supposed contradiction was immaterial, and that plaintiff's testimony could not be impeached in the manner indicated. The objection was sustained, and defendant assigns the ruling as error. Applying the strict rules of law regulating the cross-examination of a witness, we cannot say that the court erred in the exclusion of the testimony offered. It seems to be a well-settled principle that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting the witness. 1 Greenl. Ev. § 449, and cases cited. The issue to be tried in this case was whether Robbins loaned the sum of $2,500 to Dimmitt as claimed by him, and whether, as alleged, Robbins was in any manner connected with, or instrumental in, putting Dimmitt in a state of duress and illegal constraint, and in which condition Dimmitt contracted the obligation as pleaded in the answer. The fact that Robbins did or did not state to David McFaddin and J N McFaddin that no one except his wife knew that he had the money along with him would not have contributed in any degree to prove or disprove either of these issues, and consequently it was a fact collateral and irrelevant to the issue being tried.

The charge of the court, we think, contained a correct presentation of the law applicable to the facts of the case, and it is not justly obnoxious to the many criticisms presented for our consideration in the several assignments relied upon. Duress was correctly defined by the court to be "an actual or threatened violence, or illegal restraint of a man's person, to compel him to enter into a contract, or to do some act which, in the absence of such violence or restraint, might be valid or legally effective." The jury were then instructed that "if Dimmitt was assaulted by armed men, who by a display of weapons, and by threats and other acts, such as would naturally operate on a person of ordinary firmness to inspire apprehension of...