Gwinn v. Hobbs, 11613.

• Decision Date: 14 December 1923
• Docket Number: No. 11613.,11613.
• Parties: GWINN et al. v. HOBBS et al.
• Court: Indiana Appellate Court

83 Ind.App. 263

141 N.E. 812

GWINN et al.

v.HOBBS et al.

No. 11613.^*

Appellate Court of Indiana, Division No. 2.

Dec. 14, 1923.

Appeal from Circuit Court, Clinton County; Earl B. Stroup, Judge.

Action to quiet title by Anna Hobbs and another against James M. Gwinn and others. Judgment for plaintiffs, and defendants appeal. Reversed, with instructions to grant new trial.Joseph Roberts and Floyd Christian, both of Noblesville, and Harry C. Sheridan and Earl F. Gruber, both of Frankfort, for appellants.

Thos. M. Ryan, of Frankfort, and Gentry, Cloe & Campbell, and Shirts & Fertig, all of Noblesville, for appellees.

NICHOLS, J.

This is the second appeal of this case, which is an action to quiet title, and involves questions of undue influence, and of the soundness of mind of Sarah Kauffman, the grantor in the deed challenged. The opinion in the first appeal is reported in 72 Ind. App. 439, 118 N. E. 155. The error assigned is the action of the court in overruling appellants' motion for a new trial, which presents the questions hereinafter considered. By the deed involved, Sarah Kauffman, on August 13, 1901, conveyed to appellant James M. Gwinn a certain farm containing 130 acres of improved land, for an expressed consideration of “one dollar, love and affection and conditions stated herein,” reserving to herself the rents and profits, and possession of said real estate for and during her natural life. Contemporaneous with the execution of said deed, the grantor and the grantee, appellant James M. Gwinn, entered into the following agreement concerning said real estate:

“This agreement made by and between Sarah Kauffman, first party, and James M. Gwinn, second party, witness: That said first party hereby rents unto said second party, the following described real estate, situated in Hamilton county and state of Indiana, to wit, *** for and during her natural lifetime, at and for two hundred and sixty dollars ($260.00) per year, payable annually. The said first party to have a home and her board free with said second party during said time, said first party to pay all her other expenses, including doctor bills and funeral expenses. The said second party to look after first party's business during said time. The above described real estate having this day been deeded by said first party to said second party, subject to a life estate therein, said second party, or his heirs, if he shall be dead, shall not further share or inherit in said first party's estate. If the said second party shall die before said first party, then this contract shall at the end of the then rental year terminate, without in any way affecting the deed this day made and delivered by said first party to said second party for the above-described real estate. The materials and labor for all necessary improvements of the buildings, fences, etc., of said farm to be paid for by the said first party.

Witness our hands this 13th day of August, 1921. Sarah Kauffman.

J. M. Gwinn.”

Appellant Stella is the wife of appellant James M. Gwinn, and he and appellees are the grandchildren of Mrs. Kauffman. The only evidence as to the value of the estate was offered by appellees, by which it appears that the land here involved was worth $100 an acre at the time of the execution of the deed and from $225 to $250 an acre in 1912. The value of Mrs. Kauffman's estate, other than the land involved at the time of the execution of the deed, does not appear, but at the time of her death her personal estate aside from her household goods was $15,676.38, and 40 acres of land which she owned not here involved was worth $50 an acre at the time of the execution of the deed and $75 to $80 an acre in 1912.

[1] Appellees call attention to the fact that this case has been pending for 10 years, and that there have been three trials with a verdict at each trial in favor of appellees, and argue that therefore a new trial should not be granted. While appellees do not charge the delay to the fault of any one, and we do not undertake to fix the responsibility therefor, we have no hesitation in saying that it is much to be regretted that there should be such delay in the final determination of the action. This within itself, however, is not a sufficient reason for refusing to grant a new trial if substantial error is presented, Nor is the fact that there have been three verdicts in favor of appellees a sufficient reason for refusing to grant appellants relief unless the controversy presents only questions of fact for consideration. So long as substantial errors of law occurring at the trial are presented, it is our duty to consider them, and to grant a reversal, if appellants have been prejudiced thereby. The cases cited by appellees do not sustain their contention.

In Savannah Ry. Co. v. Smith, 86 Ga. 229, 12 S. E. 579, the court says: “The controversy being one of fact only, *** a fourth trial should be denied.”

In Harrigan v. Savannah Ry. Co., 84 Ga. 793, 11 S. E. 965, the court says: “We do not discover any error in law.”

In Van Doren v. Wright, 65 Minn. 80, 67 N. W. 668, 68 N. W. 22, the court says:

“It would certainly be error, after four trials, and four successive verdicts in favor of a party, to set aside the verdict, as being against the evidence, provided there is sufficient evidence to fairly justify it. Of course, this rule would not apply, if prejudicial errors of law occurred during the trial, which were duly excepted to, and urged as a ground for a new trial.”

[2] It is readily seen that such cases are not out of harmony with the rule above announced. We fully recognize the rule as stated by appellees that all questions reserved for review by an Appellate Court must be presented on the first appeal therefrom after the final judgment or not at all; for thereafter all questions presented by the record will be considered as finally determined by the judgment, and all such questions not expressly affirmed or reversed will, by implication,be deemed affirmed. Stevens v. Templeton, 174 Ind. 129, 91 N. E. 563;Cleveland, etc., R. Co. v. Blind, 186 Ind. 628, 117 N. E. 641. But, of course, where new questions arise, and such as were not and could not have been fully determined on the former appeal, such rule is without force. After an examination of the record, we conclude that there are questions presented by this appeal, not heretofore decided, which demand our consideration.

Appellants complain that the court erred in admitting evidence of the value of the land in controversy at the time of the death of Mrs. Kauffman, while appellees say that evidence to the same point was admitted at the former trial, but that the objection was waived by failure to state any point thereon, and that such question cannot therefore be presented on this appeal. Appellants dispute such condition of the record, and there is nothing in the opinion on the former appeal that enlightens us in this regard. We deem the matter not of enough importance to justify pursuing it further, for the admission of such evidence within itself would not be such error as would justify the reversal of the judgment.

[3] Witness James E. Keck, after testifying to his social and business relations and dealings with Mrs. Kauffman, was asked the following question:

“Basing your opinion upon the business dealings with her and your other conversations with her, that you have detailed to the jury, your observations of her manner and demeanor and deportment, as you have described it, state whether or not she was a person of sound mind in your opinion in the year 1901, and thereafter, and particularly on the 13th day of August 1901.”

There were other questions having substantially the same meaning propounded to other witnesses. There was an objection to each of these questions by appellees upon the ground that each asked for an opinion as to Mrs. Kauffman's sanity at some particular time when they had not seen or conversed with her. These objections were each sustained, and appellants excepted respectively to the rulings of the court.

Appellees say that a nonexpert witness cannot give an opinion that a person whom he saw and found to be sane at one time would remain sane until another particular time, more or less remote, and that such question is for the jury. In support of their contention, they cite Page on Wills, § 390. That section states the rule to be that-

“An old acquaintance who has an opportunity for knowing his testator's mental condition can testify that he believes that testator was sane; but before a nonexpert witness, who is not a subscribing witness, can give his opinion that testator was insane, he must give the facts upon which he bases his opinion, which facts must fairly justify the inference of insanity. But if the witness shows that he has not the means of forming an opinion he will not be allowed to state his opinion. Thus, a witness who had not communicated with testator for five years out of the last nine years of his life was not allowed to give his opinion as to the testator's sanity during those nine years.”

We do not see that this section is helpful to appellees' contention. In the instant case the witnesses who were asked their opinion of the mental condition of Mrs. Kauffman testified that they had known her for many years prior to making the deed in question and up until the time of her death. They had had business dealings and conversations with her; they had visited with her and she had visited with them in their home. Some of them had borrowed money of her and had testified as to her manner of transacting business, these occasions not being remote from the time of execution of the deed. And in answer to the respective questions propounded to them, in substance as above, appellants offered to prove by such witnesses, if they were permitted to answer, that Mrs. Kauffman was of sound mind.

In Swygart v. Willard, 166 Ind. 26, 76 N. E. 755, appellees had propounded to their witness...