Gambill v. Hogan

• Decision Date: 06 May 1947
• Docket Number: 2.
• Parties: GAMBILL v. HOGAN.
• Court: Tennessee Court of Appeals

207 S.W.2d 356

30 Tenn.App. 465

GAMBILL v. HOGAN.

No. 2.

Court of Appeals of Tennessee, Eastern Section.

May 6, 1947

Certiorari Denied by Supreme Court November 29, 1947.

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by Lida Bell Gambill, administratrix of the estate of Julia Butcher, deceased, against Achsa G. Hogan to recover a sum alleged to be due decedent's estate from defendant. Decree for defendant and complainant appeals.

Reversed and rendered.

Clyde W. Key, Ross H. Williams and Thurman Ailor all of Knoxville, for appellant.

Jennings O'Neil & Jarvis, of Knoxville, for appellee.

McAMIS Judge.

Lida Bell Gambill, as administratrix of the estate of Mrs. Julia Butcher, instituted this suit to recover the sum $5,990 alleged to be due the intestate's estate from the defendant Mrs. Achsa G. Hogan. The case was twice tried before the Chancellor and a jury on issues formulated to determine whether, as she claims, the defendant is entitled to retain the sum sued for as a gift causa mortis.

At the close of all the evidence at the first trial the administratrix moved the Court to withdraw the issues of fact from the jury and decree in her favor on the ground there was no evidence of the character required by law to sustain the alleged gift. This motion was overruled and the case submitted to the jury under a charge as to which there are no exceptions. The jury, being unable to agree, a mistrial was declared and, upon the motion of the administratrix for a new trial being overruled, she preserved and filed a wayside bill of exceptions. The case was again tried before the Chancellor and a jury and resulted in a verdict and decree sustaining defendant's right to the fund in controversy. The administratrix appeals and insists the Court erred in refusing to withdraw the issues from the jury and decree in her favor. Under the established practice we review first the action of the court in refusing to withdraw the issues from the jury and decree in complainant's favor at the first trial. Barnes v Noel, 131 Tenn. 126, 174 S.W. 276; Town of Dickson v. Stephens, 20 Tenn.App. 195, 199, 96 S.W.2d 201.

In so doing we are confined to the evidence introduced at the first trial and cannot consider evidence introduced at a subsequent trial though a part of the record on appeal. As will hereinafter appear, the single and decisive question for our determination is whether the testimony of Mrs. Dorothy West, the only witness offered by the donee to sustain the gift, in view of her relationship to the donee and under all the circumstances in the case, is sufficient to justify the action of the Chancellor in submitting issues of fact to the jury and refusing to decree in complainant's favor under all the evidence.

Mrs. Julia Butcher died at the age of 76 a few days after she was stricken at her home in Knoxville with a cerebral hemorrhage followed by partial paralysis. She was one of a large family of children all of whom predeceased her except her sister, the defendant Mrs. Achsa G. Hogan. Both Mrs. Butcher and Mrs. Hogan were childless but there were a number of nephews and nieces, children of deceased brothers and sisters, living at the time of Mrs. Butcher's death.

At the time of her death Mrs. Butcher was possessed of substantial real estate holdings and the fund in controversy which was found wrapped in a cloth bag. The sum, amounting to $5,990, was in bills of various denominations and was taken into defendant's possession, under the circumstances to be related, on the afternoon Mrs. Butcher was stricken.

Mrs. Butcher was found by a neighbor slumped in her chair in the hall of her home about 12:30 p. m. There is no dispute in the evidence that when discovered she was unconscious. She was placed in bed and relatives were notified. There is a sharp dispute in the evidence as to which of the relatives first appeared at the Butcher home. We shall not attempt to resolve this dispute but will take that view of the evidence most favorable to defendant in harmony with the findings of the jury. Suffice it to say that Mrs. Hogan arrived between 12:30 and 1 o'clock and several of the nieces and a nephew, Martin West, accompanied by his wife, the witness Mrs. Dorothy West, sometime near 1 o'clock. Mrs. Hogan was accompanied by Mrs. Long, an elderly lady who testified in her behalf. Before the arrival of any of these parties, Mrs. Butcher was attended by Mrs. Caldwell, Mrs. Skeen and Mrs. Wallace who became witnesses for the administratrix and whose testimony will be noticed. Dr. Copenhaver was called and arrived about 4 o'clock.

The evidence is undisputed that Mrs. Butcher was severly stricken and, as stated, that when discovered and placed in bed before the arrival of relatives she was unconscious. There is a sharp dispute as to whether she ever spoke following the hemorrhage. Martin West testified that when he entered the room and inquired as to her condition she replied: 'I feel so bad.' Mrs. Hogan and Mrs. Dorothy West, though admitting that she labored under great difficulty of speech and was practically reduced to the necessity of pointing to make known her wishes, say they were able to understand her when she attempted to talk. Mrs. West's testimony as to Mrs. Butcher's alleged statements concerning the gift to Mrs. Hogan will be hereinafter fully detailed.

Mrs. Caldwell, Mrs. Skeen and Mrs. Wallace testified that they were in the room practically all the time until after the Doctor came (which would include the time when Mrs. West says the gift was made) and that Mrs. Butcher was unconscious the entire time and never spoke while they were there.

Mrs. West testified that the statements made by Mrs. Butcher as to the gift were about twenty-five minutes after her arrival. This would have been about 1:30 and before Dr. Copenhaver arrived. Mrs. Long, who accompanied Mrs. Hogan to the Butcher home, testified that Mrs. Butcher appeared to know what was said to her; that she could not talk but did utter some words she was unable to understand; that she would point to her mouth and nod or shake her head.

In view of the jury's verdict, we accept this testimony though Mrs. Caldwell, Mrs. Skeen, Mrs. Wallace, all disinterested witnesses, and several of the nieces who, however, appear to have some interest in the case, all testified that they were in the room practically all of the time after Mrs. Butcher was placed in bed and that she was unable to speak, never uttered a single word and, in fact, was unconscious during the time the alleged statements as to the gift would have been made. Dr. Copenhaver was of opinion Mrs. Butcher was unconscious and unable to speak after she was stricken but admitted that it was possible that she was able to make herself understood and may have been conscious sufficiently to converse with her sister, Mrs. Hogan.

Fairly appraising defendant's evidence and viewing it in its most favorable light, considering it along with undisputed evidence, and rejecting all conflicting evidence offered by complainant, the jury had for its consideration the claim of a gift by one who, within the hour, had suffered the shock of a severe cerebral hemorrhage, with partial paralysis, resulting in a period of temporary unconsciousness from which she had passed into a state of consciousness handicapped, however, with a grave impediment of speech which enabled her to speak only indistinctly and in a low voice and embarrassed and frustrated in her attempts to communicate her desires to the point she relied principally upon pointing her finger and shaking or nodding her head. With this sketch of the background, we come to a consideration of the testimony of Mrs. West as to the gift and the events which followed, noting at this point complainant's insistence that Mrs. West's testimony is so self-contradictory and incredible that it amounts to no evidence, or, at least, that it is not of the requisite probative force to sustain a gift causa mortis. We quote her entire testimony on this question:

'Q. Who was there at that time? A. Aunty Hogan and Mrs. Long and Bessie Kate Gambill were out on the front porch waiting for the Doctor to come, and while I was there Aunty Hogan was trying to make her sister more comfortable, asked if there was anything for her to do, and the best she could speak she said, 'Get my money and keep it.'

'Q. Was that all she said? A. She had told her to take it where she had left it before that, that she told her that day, and said, 'You keep it for yourself, if anything was to happen to her.'

'Q. Now a while ago you said your Aunt Mrs. Butcher said, 'Get my money and keep it,' those are the words I believe you said she said, 'Keep it if anything should happen to me'. Now what else did she say? A. That is all she said then.' The last quotation is the testimony of Mrs. West given on cross-examination. On re-direct examination she testified:

'Q. Mrs. West * * * repeat as nearly as you can word for word what you heard Mrs. Butcher say to your Aunt there that day. A. Aunty Hogan asked her if she could do anything for her, and she looked up and said, 'Get my money and keep it,' that is exactly what she said while I was standing there.'

At this point the court sustained an objection to another question and counsel for defendant then continued his re-direct examination:

'Q. Just want you to state to the jury all she said.'

This question was objected to and was never answered. Counsel then continued re-direct examination as follows:

'Q. I want to know exactly what she said, and want to be clear about it, and want the jury to be clear on it.

'The Court: 'Q. Did you finish the answer to that question? A. I merely said that was all that she said, but she did say 'get my...