Fritcher v. Kelley

• Decision Date: 29 October 1921
• Citation: 201 P. 1037,34 Idaho 471
• Parties: GLENN F. FRITCHER, Administrator of the Estate of JOHN ALLEN, Deceased, Respondent, v. JOHN H. KELLEY and LAURA B. KELLEY, Appellants
• Court: Idaho Supreme Court

201 P. 1037

34 Idaho 471

GLENN F. FRITCHER, Administrator of the Estate of JOHN ALLEN, Deceased, Respondent, v. JOHN H. KELLEY and LAURA B. KELLEY, Appellants

Supreme Court of Idaho

October 29, 1921

MOTION TO ELECT - EQUITABLE ACTION - JURY IN ADVISORY CAPACITY-HARMLESS ERROR-EVIDENCE-SUBSEQUENT STATEMENTS OF GRANTOR - MENTAL CONDITION - OPINION TESTIMONY - LAY WITNESSES-FOUNDATION-ADMISSION OF DOCUMENTARY EVIDENCE FOR LIMITED PURPOSE - PRIVILEGED INFORMATION - PHYSICIAN AND PATIENT-REVIEW OF INSTRUCTIONS-SUFFICIENCY OF EVIDENCE.

1. Where a complaint contains a valid statement of but one cause of action, an order denying a motion to elect is not error.

2. On the trial of an equitable action to set aside a conveyance on the ground of mental incompetency, a jury having been called to act in an advisory capacity, the fact that the court permitted an improper tender to be made is not reversible error where it appears that the judgment of the court on the material issues could not have been influenced thereby.

3. In such action statements of the grantor, made shortly after the execution of the deed, to the effect that he had not executed it, are admissible as circumstances bearing on the question of his mental competency at the time of the execution.

4. The question as to the qualifications of lay witnesses who testify as to their opinion of the mental competency or incompetency of the grantor is addressed to the sound discretion of the trial court, and its ruling thereon will not be reversed unless it appears that it was an abuse of discretion.

5. In such case, admission of a document, the contents of which are not admissible, is not reversible error, where it clearly appears that the trial court admitted it solely for the purpose of fixing a date, which was relevant in connection with certain oral testimony.

6. Under C. S., sec. 7937, subd. 4, if a physician is called to attend a patient for a certain ailment, and, in examining and observing the patient for the purpose of treating and prescribing for him, necessarily obtains information in regard to his mental condition, such information is privileged.

7. In an equity case, in which the jury acts in a purely advisory capacity, the action of the court in giving or refusing instructions will not be reviewed.

8. If there is a conflict in the evidence and there is evidence in the record which, if uncontradicted, would support the judgment, it must be affirmed on appeal.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to set aside conveyance. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Walters Hodgin & Bailey, for Appellants.

If error has clearly intervened, the general rule is that the judgment must be reversed and a new trial granted. (1 Haynes on New Trial and Appeal, sec. 108; 20 R. C. L. 227.)

Declarations of a grantor against the title of his grantee, made after he has parted with title, are not admissible. (1 Ency. of Evidence, 526; Bismarck etc. Mining Co. v. North Sunbeam G. M. Co., 14 Idaho 516, 95 P. 14, 162 P. 998; Joslyn v. Daly, 15 Idaho 137, 96 P. 568; 1 R. C. L 501, 475.)

Nonexpert witnesses cannot give opinion evidence as to the insanity of a person unless they first state the facts and circumstances upon which such opinions are based. (Ryder v State, 38 L. R. A. 721, note appended thereto; 7 Ency. of Evidence, 467; Weber v. Della Mt. Mining Co., 14 Idaho 404, 94 P. 441.)

Information given to a physician by his patient which is necessary to enable him to prescribe for the patient is privileged, but information obtained by the physician which is not necessary to enable him to prescribe for the patient is not privileged. (4 Jones on Evidence, pp. 545-759; In re Black, 132 Cal. 392, 64 P. 695, and cases cited; Booren v. McWilliams, 26 N.D. 558, 145 N.W. 410, and cases cited; 10 Ency. of Evidence, 128.)

E. M. Wolfe, J. F. Martin, Ostrom & Green, for Respondent.

There were not sufficient facts stated in the respondent's complaint to constitute a cause of action of undue influence. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45.)

Where one cause of action is stated in a complaint and other facts which are not necessary to constitute that cause of action, but which do not constitute another cause of action, are also stated; the court will disregard the superfluous matter, and proper remedy is a motion to strike. (Secs. 6708, 6728, C. S.; Steinour v. Oakley State Bank, 32 Idaho 91, 177 P. 843.)

In an equity case, where the jury is only advisory, and where improper evidence is admitted, the higher court will not reverse the case unless it appears that the trial court misapprehended the rule to the prejudice of the appellants. ( Kelly v. Perrault, supra; California Electric Light Co. v. California Safe Deposit & Trust Co., 145 Cal. 124, 78 P. 372; Sipe v. Sipe, 102 Kan. 742, 173 P. 13, L. R. A. 1918E, 1029.)

Where declarations are introduced to show circumstantially the state of mind as to the sanity or insanity of the declarant, such declaration does not violate the hearsay rule. (3 Wigmore on Evidence, sec. 1790.)

Where a nonexpert witness shows that he has had opportunity to observe a person as to his mental competency, he may state his opinion as to the sanity or insanity of the person in question without giving the observed data. (See Weber v. Della Mountain Mining Co., 14 Idaho 404, 94 P. 441; Kelly v. Perrault, supra; Wigmore on Evidence, secs. 1922, 1932-1935.)

Any evidence which is obtained by a physician while attending a patient in his capacity as a physician or surgeon is privileged, even though this was not absolutely necessary to enable the physician to prescribe for his patient. ( Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110, 48 L. R. A., N. S., 119; 23 Idaho 467, 130 P. 995; Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932.)

If there is enough competent evidence, taken alone, from which the trial court could have found its findings of fact, then the supreme court will not set its decree aside. (Neil v. Hyde, 32 Idaho 576, 186 P. 710; Davenport v. Burke, 30 Idaho 599, 167 P. 481.)

MCCARTHY, J. Rice, C. J., and Budge, Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action by respondent, as administrator of the estate of John Allen, deceased, to set aside a deed of 80 acres of agricultural land executed and delivered by said deceased to appellants on July 18, 1915. The complaint alleges that deceased was at the time of said conveyance incapable of comprehending and understanding and in fact did not comprehend or understand its character, nature or effect, and that he was wholly incapacitated from attending to business matters. This is an allegation that deceased did not have mental capacity to execute the conveyance. The complaint also alleges:

"That the said defendants exercised undue influence over the said John Allen, and persuaded him to make, execute and deliver said deed to them, and induced him to execute said deed which, in the free exercise of his deliberate judgment, he would not have executed. . . .

"That the said defendants had acted as agents for the said John Allen in many matters; that they had written letters for him; that they had drawn his money at the bank for him; that they had paid his taxes and maintenance for him; that they had cared for him at times during periods of illness or physical disability; that they had taken charge of and looked after many of his business matters, and that a fiduciary and confidential relationship existed between the defendants and the said John Allen. That they had employed counsel to look after and take care of the business of the said John Allen, and had employed counsel on their own behalf to look after and take care of the business of the said John Allen, and had employed counsel to help, aid and assist in procuring and influencing the said John Allen in conveying land to the said defendants."

The court impaneled a jury to act in an advisory capacity. The jury found in answer to interrogatories that appellants were not living in a close confidential relationship with deceased on July 18, 1915; that they paid no consideration for the deed; that deceased did not fully understand and fully appreciate what he was doing when he executed the deed; and that he did not make it of his own free will and volition and did not understand the effect of his act. The court adopted the findings of the jury and made the following additional finding:

"That on the said eighteenth day of July, 1915, and at the time of the signing of said deed the said John Allen was about eighty (80) years of age, very infirm and ill, weak in body and mind, laboring under delusions and hallucinations all to such an extent and degree that he was wholly incapacitated and entirely without understanding sufficient to conduct the ordinary business transactions of life; and that because of such mental condition he did not understand the purpose or effect of his signing of the said deed.

"That no substantial consideration passed from the defendants to the said John Allen for the execution of said deed.

"That the defendants fraudulently took advantage of the mental weakened condition of the said John Allen and procured the deed from him without any consideration for him therefor.

"That the signing of the said deed by said John Allen was not his free exercise of his deliberate judgment but was the result of his inability to understand the effect of his act."

From a judgment setting aside the conveyance, appellants appeal.

Of the many errors assigned we will discuss those which we think worthy of special notice.

Appellants contend that the complaint...