Ford v. Ford

• Decision Date: 23 October 1911
• Citation: 140 S.W. 993,100 Ark. 518
• Parties: FORD v. FORD
• Court: Arkansas Supreme Court

140 S.W. 993

100 Ark. 518

FORD v. FORD

Supreme Court of Arkansas

October 23, 1911

Appeal from Pulaski Circuit Court, Second Division, F. Guy Fulk Judge; reversed.

Judgment reversed and cause remanded.

Mann Rollwage & Morrow, for appellant.

1. Witnesses cannot draw conclusions from a given state of facts, and give such conclusions in evidence. They must state facts, and let the jury determine upon the facts, not upon their opinion of them. 66 Ark. 494; 24 Ark. 251.

2. Physical infirmities, the use of morphine and liquor for many years and even a partial eclipse of the mind would not prevent one from making a valid contract or from disposing of his property if he knew and understood what he was doing at the time. 27 Ark. 166; 49 Id. 367; 73 Id 281. Expert testimony based upon hypothetical questions will not be allowed to control or set aside testimony based upon actual facts and conditions. 50 Ark. 511; 73 N.W. 1023; 1 N.E. 687

3. Undue influence by appellant was not shown by the testimony, nor that confidential relations existed. There must be a malign influence resulting from fear, coercion or other cause, depriving him of free agency. 78 Ark. 420. Appellant paid the dues upon the policy, furnished money for the treatment to get relief from the morphine habit and paid all expenses of the last illness. These and many other acts of kindness were sufficient to influence deceased to transfer the policy. 49 Ark.369.

4. The hypothetical question asked Dr. Morrow did not fairly reflect the evidence, nor was it responsive to the real facts. Taylo v. McClintock, 87 Ark. 294; 24 N.W. 482; 134 Mass. 505; 112 Mo. 45; 21 S.W. 737; 70 P. 996. The fact that deceased had performed work was undisputed, and it was error not to include the fact in the hypothetical question. 87 Ark. 294; 77 Id. 426; 96. N. W. 338.

H. A. Parker and J. W. House & J. W. House, Jr., for appellees.

1. The evidence fully sustains our contention that the mental condition of Chas. F. Ford, Sr., was such as to incapacitate him from making a valid contract. The effect of whisky and morphine on the human system is well known and recognized by the courts. 76 Ark. 288; 64 Id. 530.

2. Opinions of witness based on proved facts are admissible in evidence as to sanity, mental condition, etc. 117 Mass. 137; 76 Ark. 288; 64 Id. 523; 54 Id. 599; 15 Id. 601; 17 Id. 292; 22 Id. 3.

3. Expert evidence based on hypothetical questions, stating the facts, is always competent. 50 Ark. 511; Rogers on Expert Testimony, §§ 37-42; 1 Wharton & Stille, Med. Jur. §§ 194-198.

4. Undue influence is proved beyond controversy, amounting to coercion.

5. The hypothetical question asked Dr. Morrow stated the facts sufficiently. 87 Ark. 294; 77 Id. 423; 96 N.W. 429; 98 Ark. 352; 1 Wigmore on Ev. 682. Besides, there was no sufficient objection to the question. 131 S.W. 46; 36 Ark. 653; 52 Id. 180; 11 S.W. 959; 26 Am. St. 163; 73 Ark. 407; 84 S.W. 494; 85 S.W. 428.

McCULLOCH, C. J. KIRBY, J., dissents.

OPINION

McCULLOCH, C. J.

Charles F. Ford, of Marianna, Arkansas, was at the time of his death on November 21, 1909, a member of the Royal Arcanum, a fraternal benefit association, and as such member held a benefit certificate therein in the sum of $ 3,000, payable to his brother, the appellant, Marshall H. Ford. He joined said association in the year 1879, and, being then unmarried, his first benefit certificate was made payable to the appellant and his sister, Mrs. Govan. He married in the year 1883, and soon thereafter caused his benefit certificate to be made payable to his wife. He was then living in Marianna, but about the year 1891 he moved to Helena, where he resided with his wife until the year 1905, when he moved back to Marianna, leaving his family in Helena, and resided in Marianna until his death. He and his wife separated when he left Helena, and thereafter they lived apart, she obtaining a divorce from him by a decree of the chancery court rendered in January, 1907. During his membership in said association he changed his benefit certificate several times. In June, 1905, he changed it from his wife to his daughter and two sons. In January, 1907, he changed it to his three sons, the appellees in this cause. In January, 1908, he changed it so as to make $ 500 payable to appellant, and the remainder to two of his sons. The last certificate, making the entire amount payable to appellant, is dated April, 1908, but the first application for that change was made on February 18, 1908, and the corrected application upon which the certificate was finally issued bears date March 14, 1908. Changes could, by the laws of said association, be made at the will of the member. After the death of Charles F. Ford and the payment of the full amount of the benefit to appellant, the appellees instituted this action in the circuit court of Pulaski County against appellant to recover the amount so collected, alleging that the last change of benefit certificate was procured by undue influence over the said Charles F. Ford, and also that the latter was at the time of said change mentally incapable of transacting any business. Appellees claim the money under the certificate issued in January, 1907, which was payable to them.

The allegations of the complaint as to undue influence and as to mental incapacity of Chas. F. Ford were denied in the answer, and the trial of the cause before a jury resulted in a verdict and judgment in favor of appellees against appellant for the full amount of the policy.

The testimony adduced by appellees established the fact that Charles F. Ford was addicted to the excessive use at times of intoxicating liquors, and that about the year 1892 he also became addicted to the habitual use of morphine, of which habits he was never entirely cured, though he resorted to treatment therefor as many as four times. He went to Memphis for treatment on two different occasions, the first being in the year 1895, at what is known as the Keeley Institute, and again in February, 1908, at a similar institution. He also went to Little Rock for treatment, and also to Kansas City, where he was treated in institutions of that sort.

The witnesses on the part of the appellees testified that Charles F. Ford's mind became affected to the extent of weakening his mental powers on account of the use of liquor and morphine, and that before he became separated from his wife, as a result of the use of the drug and liquor, he at times mistreated his wife.

The testimony adduced by appellant tended to show that his mental powers were not in a weakened condition from the time he moved back to Marianna in 1905, and it established, beyond dispute, the fact that from the time he came back to Marianna up to the time of his death he was almost constantly engaged in various kinds of business. He clerked in stores, managed a grocery store for his brother (the appellant), was jailor for a time under his brother, who was sheriff of the county, was deputy tax collector under his brother, and collected taxes and issued receipts therefor, and that during one cotton season he weighed cotton at one of the warehouses, his duties being to weigh the cotton and keep a record of the weights, gin marks, names of seller and purchaser, etc., and to attend to the shipping and marking of cotton. These facts were testified to by a large number of citizens of Marianna, professional and business men, who showed an intimate knowledge of the habits of the man and his method of transacting business. One of the witnesses was his physician, who treated him when he was ill.

During the progress of the trial counsel for appellees offered in evidence the deposition of Dr. Samuel B. Morrow, a physician who was in charge of the Keeley Institute when Ford was treated there in 1895, and who testified to that fact. The following questions were propounded to Dr. Morrow over the objection of appellant, and the answers thereto were separately objected to:

"Q. Take Mr. Ford in 1894 and 1895 after being treated--say that he returned from your institution, or the Keeley Institute at Memphis, and after 18 months went back to the morphine and whisky habit, and then was treated for 6 or 8 weeks for that same disease; and then two years or two and one-half years later, to-wit, in 1899-1901, went to a similar institution for the morphine habit, then if it is a fact that his mind grew weaker from the time he took his second treatment two years after he left your institution up to 1901 and his body also grew weaker, then in 1899 or 1901 he became in such a state of health on account of the morphine and whisky habit that he was forced to take another treatment at that date after which he never did any work, mentally or physically, of any consequence especially on account of the weakness of his mind--now, we will say in December, 1907, or January, 1908, while again in a sanitarium for the treatment of morphine, was he then capable of transacting important business, such as the most important business of life, for instance, to make an intelligent will, or convey real estate by deed, or transfer insurance policies and business of that kind?

"A. The longer a man dissipates with either alcohol or drug, the more deterioration takes place for nervousness. His will power becomes weaker, and his judgment faulty. While there might be at times that he could transact business correctly, at other times his judgment would be very unsteady.

"Q. Now state, Doctor whether a person of that kind as just described in the hypothetical question above would be easily persuaded by persons he felt under obligations to and on account of their persuasions signed papers--important papers--that he otherwise would not do?

"A. Such persons are very easily impressed and easily...