George v. Wiseman

• Decision Date: 06 September 1938
• Docket Number: No. 1650.,1650.
• Citation: George v. Wiseman, 98 F.2d 923 (10th Cir. 1938)
• Parties: GEORGE v. WISEMAN.
• Court: U.S. Court of Appeals — Tenth Circuit

98 F.2d 923 (1938)

GEORGE v.WISEMAN.

No. 1650.

Circuit Court of Appeals, Tenth Circuit.

September 6, 1938.

Hal E. Harlan, of Manhattan, Kan. (Lawrence J. Richardson and R. T. McCluggage, both of Topeka, Kan., on the brief), for appellant.

Tinkham Veale, of Topeka, Kan. (James E. Smith, E. H. Hatcher, and Frank H. McFarland, all of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

Reference will be made to the parties as they appeared in the court below.The action is by a woman more than seventy years of age against a man forty-two years old to recover certain bonds in the amount of $140,600 — or the value thereof in the event disposition had been made of any of them — and $19,200 in money alleged to have been wrongfully obtained through fraudulent means.The case was tried to a jury; a verdict was returned for plaintiff; judgment was entered; and defendant appealed.

It is argued at length that the action is one in replevin; that the petition falls short of stating a cause of action on the ground of fraud; that the reply may tender such issue limited to the single question whether defendant misrepresented the contents of a written instrument called a deed of gift; that there was no evidence tending to show that he misrepresented the contents of such instrument; that the pleadings do not tender the issues of fiduciary relationship, mental incapacity, or undue influence; and that the court erred in submitting them to the jury.It is alleged in the petition that soon after the parties became acquainted, defendant represented himself to be an experienced bookkeeper and businessman; that he volunteered and assumed to give plaintiff much advice concerning her business affairs; that he volunteered his services and attempted to act as a private and confidential secretary; that she employed him as a chauffeur to drive her pleasure automobile; that he learned she had certain government bonds and other bonds deposited with a trust company in Topeka, Kansas; that he told her on many occasions it would be better and safer for her to segregate some of them and "not put them all in one basket"; that he suggested, requested, and urged her to deliver some of them to him in order that he could place them in his safety deposit box in the Topeka State Bank; that at such times she was sick with a serious illness, was confined to her bed most of the time, and was under the continuous care of a physician; that the illness impaired her physical and mental faculties and made her very easily susceptible to suggestions from other persons, particularly from defendant; that believing his statements to be true, relying upon his advice, and believing that he was acting in good faith and for her best interests, and that he would return the bonds upon request, she delivered them to him for safekeeping; that at the time of such delivery she signed a written instrument of some kind which had been prepared by him or some other person at his request, the exact nature of which she did not know either at the time of its execution or at the institution of the suit; that his statement that he had a safety deposit box in a bank in which he would deposit such bonds for safekeeping was false and untrue; that after the delivery of the bonds she was restored to improved health and requested their return; and that he thereupon claimed that she had made a gift of them to him and refused to return them.The answer denies that the bonds were delivered for safekeeping.It affirmatively alleges that plaintiff made an outright gift of them to defendant and invested him with the legal and equitable title to them; that she executed a written instrument of conveyance, a copy of it was attached; and that she was a woman of strong mentality and was in full possession of her mental faculties at the time of the gift.The reply avers that at about the time the bonds were delivered to defendant, he stated to her that it would be necessary for her to sign a writing in order that the bonds could be removed from her deposit box and placed in his; that he had a paper prepared and requested her to sign it; that she signed it without reading it, believing his statements that it was merely to enable him to remove the bonds; that she did not know its nature or significance; and that if the instrument pleaded in the answer was the one she signed, her signature was obtained through fraud.Perhaps with a full measure of care and aptitude the pleadings could have been drawn with more skill, but they tender the issues of fiduciary relationship, mental weakness, and undue influence as elements entering into the fraud in the procurement of the instrument of conveyance and the delivery of the bonds; and the case was tried throughout upon that theory.

The action of the court in submitting such issues to the jury is challenged for want of substantial evidence tending to establish them.The testimony presented sharp conflicts, but there was substantial evidence which tended to establish these facts.The husband of plaintiff died about four years prior to the time of the transaction which gives rise to this controversy.She and her husband had lived at the Jayhawk Hotel in Topeka several years immediately preceding his death, and she continued to live there afterwards.She owned a planing mill and a number of residential properties in Topeka; she had bonds in the aggregate of $450,000 and $15,000 in currency in a deposit box in the Central National Bank of that city; and she had money on deposit in a checking account in the bank.Defendant was employed as desk clerk at the hotel from March 2 to December 1, 1935.Plaintiff and defendant became acquainted at the desk soon after he began as clerk, and they developed a friendship to the extent that they frequently dined together and on one occasion he joined others in playing bridge in her room.He told her that he did not like his work at the hotel and wished to get away from it; that he expected to lose his job any time; and that he would like for her to let him drive her automobile.She employed him as her chauffeur at an agreed salary of $100 per month beginning December 2, 1935.Soon thereafter they made a trip to California in her car, remained there a few days, and returned to Topeka in order that she could give attention to some business.She again made her residence at the Jayhawk Hotel and he stopped there also.In February they again motored to California, went from there to Honolulu, and returned to Topeka about the middle of March.She resumed her residence at the hotel and he again stopped there.She paid his expenses at the hotels in Topeka, California, and Honolulu, in addition to his salary.He told her that he had been informed before they met how rich she was; he frequently suggested that she tell him about her business; and upon her declination, he stated repeatedly that she did not trust him and for that reason would not tell him.She was stricken with apoplexy at the hotel sometime in April and was confined to her bed for about two weeks, during which period she was under the care of a physician.Her left arm and left leg were partially paralyzed, her mouth drooped on one side, and her left eye was drawn.It was the opinion of the physician that she suffered a hemorrhage of the brain of a type which dulls the mentality and lessens the resistance of the patient, which is very slow in correcting itself and usually requires from two weeks to six months for recovery.In talking with the physician she was unable at times to answer his questions and sometimes she would not express herself understandably.On one occasion she failed to recognize the person who had been manager of the planing mill for twenty years, and in talking with him on different occasions she would repeat a question which had been asked and answered just a few minutes previously.It was the opinion of the physician that at one time during her illness she did not know who her relatives were; and based upon his long acquaintance with her, it was the opinion of the manager of the mill that the stroke weakened her and that she was irrational at times.Defendant ordered their meals and they ate together in her room.At the suggestion of defendant and the physician, about the first of May she was removed from the hotel to a residence which she owned in Topeka.Defendant and a woman attendant went along.Soon thereafter she suffered a slight intensification of the stroke.The woman attendant was later discharged and defendant went to Liberty, Missouri, his old home, and employed Leta Andrews, a woman he had known for many years, to come to Topeka and act as nurse for plaintiff.Due to the weakened condition of plaintiff, she and the nurse occupied a room on the first floor of the residence, and defendant occupied one on the second floor.Defendant told her on one occasion that he thought a bank was not a safe place at which to keep securities in those days; she replied by asking where she could keep them; he suggested that "rather than have all of her eggs in one basket" perhaps she should let him place some of them in a box he had in a bank in Topeka; and he made the suggestion more than once.The time came when she thought some coupons should be clipped from the bonds.She directed defendant to go to the bank and get the contents of the box and bring them to the residence.He replied that they would not let him have them, and she thereupon wrote a note to the vice-president of the institution directing that the contents of the box be delivered to defendant.Defendant presented the note.The vice-president called her on the telephone and inquired whether she wished the bonds delivered to defendant and she answered in the affirmative.He then suggested that he come to the residence with defendant; that was agreed upon; the contents of the box were delivered to defendant; he...