Fish v. Poorman

• Decision Date: 07 July 1911
• Docket Number: 16,815
• Citation: 116 P. 898,85 Kan. 237
• Parties: AGNES M. FISH et al., Appellants, v. B. A. POORMAN et al., Appellees
• Court: Kansas Supreme Court

116 P. 898

85 Kan. 237

AGNES M. FISH et al., Appellants, v. B. A. POORMAN et al., Appellees

No. 16,815

Supreme Court of Kansas

July 7, 1911

Decided July, 1911.

OPINION ON REHEARING.

Appeal from Riley district court. Opinion on rehearing, filed July 7, 1911. Reversed. (Original opinion not reported.)

Judgment reversed and new trial ordered.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSANITY--Proof of--Previous Acts Competent Evidence. Where the issue to be determined by the jury is the mental condition of a person at a certain time, it is always competent to show previous acts of insanity, delusion or mental derangement unless the previous conditions are excluded because they appear to be disconnected and remote. Where the mental derangement or its cause is continuing or permanent in character the objection of remoteness will not apply.

2. INSANITY--Nonexpert Competent to Give His Judgment. A nonexpert witness may be permitted to give his judgment as to the sane or insane state of another's mind, after having detailed to the jury the extent of his opportunities to deduce a correct opinion and judgment thereon. (Howard v. Carter, 71 Kan. 85, 80 P. 61.)

3. INSANITY--Evidence of Taint in Family Competent. Proof of a taint of insanity in the family of a person is competent when there is other proof of the insanity of the person in question.

4. UNDUE INFLUENCE--Grantor and Grantee Believers in Spiritualism--Medium--Competent Evidence. The plaintiffs sought to show that a conveyance was procured by the undue influence of the grantee. There was evidence which tended to show that the grantor, a woman fifty-two years of age who was in ill health, conveyed to her family physician a farm worth $ 3500 in consideration of an indebtedness she owed him of less than $ 1000. The court excluded evidence that the grantor and grantee were believers in spiritualism and frequently met and talked over their religious belief. Held, that the evidence was competent for the purpose of showing the relations which the parties to the conveyance sustained to each other.

5. DELIVERY OF DEED--Presumption When Found among Papers of Deceased. Where a deed to real estate duly executed is found among the papers of a deceased person who is named as grantee the presumption is that it was duly delivered and the burden of proving the contrary rests upon the grantor or person who claims that it was not delivered. Held, further, that an instruction is erroneous which charges that a mere preponderance of evidence on the part of the grantor is sufficient to show that it was not his intention to convey the land described in such deed.

6. PHYSICIAN--Statutory Incompetence to Testify May be Waived. The heirs at law of one who has been treated by a physician may waive the provisions of the statute making a physician incompetent to testify to any knowledge obtained in his professional capacity from the patient.

7. EVIDENCE--Not a Transaction with Deceased. A denial by a witness that he delivered to the deceased in the latter's lifetime a certain deed, held not evidence of a transaction with a deceased person but a mere denial that a transaction was had.

8. INSANITY--Burden of Proof--By Preponderance of Evidence. The burden of proving mental incapacity in a person of mature years rests upon the party having the affirmative, but this burden may be met by a preponderance of the evidence, and an instruction requiring clear and satisfactory evidence in order to establish such mental incapacity is erroneous.

9. PRACTICE, SUPREME COURT--On Rehearing Issues Same as on Original Appeal. Upon rehearing all the questions raised by the appeal are open for reargument except where the order granting the rehearing otherwise provides.

Daughters & Story, and Bird & Pope, for the appellants.

John E. Hessin, John C. Hessin, and Hoyt A. Poorman, for the appellees.

OPINION

PORTER, J.:

This was ejectment brought by plaintiffs to recover possession of an undivided two-thirds interest in a quarter section of land and for rents and profits.

The plaintiffs and Ellen T. Crain are the surviving sisters and heirs at law of Millie R. Sherwood, who owned the land in her lifetime and who died in October, 1905. The defendants acquired the interest of Ellen T. Crain and also claim title under certain conveyances from Millie R. Sherwood to Dr. W. A. Forster. The plaintiffs' contention is that at the time the conveyances to Doctor Forster were made Mrs. Sherwood was of unsound mind, and that he exercised an undue influence over her, and, further, that the land in question was reconveyed by Doctor Forster to Millie R. Sherwood in her lifetime. There was a trial to a jury and a verdict for the defendants. The plaintiffs appeal.

The errors assigned are thirty-four in number, but it will not be necessary to consider all of them. The plaintiffs offered evidence showing that Millie R. Sherwood, who was fifty-two years of age at the time of her death, had suffered from ill health for a number of years; that at one time she was injured in a streetcar accident, that she had been struck by lightning, had been sand-bagged, and had suffered from the results of these injuries from the time they were inflicted; that she suffered much from nervous headache, pain in the bowels and lower limbs, was hysterical at the least provocation, was given to moods and would go off and cry for two or three days at a time, and that she was weak-minded and easily influenced. Much of this testimony the court excluded on the ground that it was not made to appear that the particular conditions were present at or near the time the conveyances were executed. We think it was error to exclude the testimony. It is true that some of the instances of the physical as well as the mental condition of Mrs. Sherwood had reference to times long previous to the execution of the conveyances, and were to that extent of less probative force than if shown to have been present at or near the time the deeds were made. The evidence, however, was competent in connection with other testimony which tended at least to show that Mrs. Sherwood was not of sound mind at the time of the conveyances. The issue to be determined by the jury was her mental condition at a certain time, but it is always in civil cases competent to show previous acts of insanity, delusion or mental derangement, unless the previous conditions are excluded because they appear to be disconnected and remote. In 22 Cyc. 1117 the rule is stated as follows: "Where insanity at a particular time is in issue, evidence of insanity before and after that time will be received, subject to a proper restriction as to remoteness."

Where insanity is continuing or permanent in character, or where the cause of the disorder is continuing or permanent, the objection of remoteness will not apply. Even in criminal cases the inquiry is as to the condition of the defendant's mind for a reasonable period both before and after the time. (The State v. Newman, 57 Kan. 705, 47 P. 881.)

"But in order to ascertain a person's mental condition at the time of the act in question, it is permissible to receive evidence of the condition of his mind for a reasonable period both before and after that time, especially where it is claimed that his disorder is of a continuing or permanent character, and this evidence should be considered by the jury in connection with the other facts and circumstances of the case." (16 A. & E. Encycl. of L. 614.)

Mrs. Phalen, a sister of Mrs. Sherwood, was not allowed to state her opinion of the mental condition of Mrs. Sherwood, on the ground that she was not qualified to give an opinion. A similar objection was sustained to the testimony of Charles S. Owsley, an attorney who transacted business for Mrs. Sherwood the last three years of her life and who frequently saw and talked with her. The rulings rejecting this testimony were erroneous.

"It is well settled in this state that a nonexpert witness may be permitted to give his judgment as to the sane or insane state of another's mind after having detailed to the jury the extent of his opportunities to deduce a correct opinion and judgment thereon. In all such cases it is a question for the jury as to the weight which such opinion should be given, considering the opportunities for and the accuracy of such observation." (Howard v. Carter, 71 Kan. 85, 91, 80 P. 61.)

( Baughman v. Baughman, 32 Kan. 538, 4 P. 1003; The State v. Beuerman, 59 Kan. 586, 53 P. 874; Smith v. Smith, 84 Kan. 242, 114 P. 245.)

Plaintiffs also offered proof, which the court rejected, showing that several relatives of Mrs. Sherwood were insane, and that one of them, Elizabeth Powell, her mother's sister, died in an insane asylum. This class of testimony is generally held admissible on the recognized principle of the hereditary character of insanity, but only in corroboration of proof that a particular person is or was insane. (22 Cyc. 1117; 7 Encyc. of Ev. 453.) But proof of a taint of insanity in a person's family, without actual evidence of insanity in the person himself, will never be allowed to overcome the presumption of his sanity. (Snow et al. v Benton et al., 28 Ill. 306; Bradley v. The State, 31 Ind. 492.) By the weight of authority such proof is said to be competent only when there is other proof...