Livingston v. Holt

• Decision Date: 27 November 1917
• Citation: 165 N.W. 975,38 N.D. 556
• Court: North Dakota Supreme Court

165 N.W. 975

38 N.D. 556

ROSE E. LIVINGSTON v. DANIEL B. HOLT, as Administrator of the Estate of James H. Grady, Deceased

Supreme Court of North Dakota

November 27, 1917

Appeal from the judgment of the District Court of Cass County Honorable A. T. Cole, Judge.

Affirmed.

Judgment affirmed, with costs.

M. A Hildreth, for appellant.

"Where incompetent evidence is admitted over objection, before such error can be disregarded as nonprejudicial, it must appear that the error did not and could not have prejudiced the rights of the complaining parties. And the case must be such that the appellate court is not called upon to decide, from a preponderance of the evidence, that the verdict was right notwithstanding the error complained of." Huston v. Johnson, 29 N.D. 546, 151 N.W. 774.

The court's charge upon the question of voluntary payments upon the insurance policy was clearly erroneous. Remington v. Geiszler, 30 N.D. 347, 152 N.W. 661; Linton v. Minneapolis & N. Elev. Co., 2 N.D. 232, 50 N.W. 357; McKyring v. Bull, 16 N.Y. 305, 69 Am. Dec. 696; Barron v. Northern P. R. Co., 16 N.D. 277, 113 N.W. 102; Petitt v. Belle Plain, 162 Iowa 726, 144 N.W. 1015; Peloni v. Smith-Lowe Coal Co., 151 Iowa 462, 131 N.W. 685; D. A. Enslow & Son v. Ennis, 155 Iowa 266, 135 N.W. 1105; Nicklaus v. Burns, 75 Ind. 93; Smith v. Evans, 13 Neb. 314, 14 N.W. 406; Esterly Harvesting Mach. Co. v. Frolkey, 34 Neb. 110, 51 N.W. 594; Swords v. McDonell, 31 N.D. 494, 154 N.W. 258.

The doctrine that a jury has the right to reject the testimony of a witness rests upon the common-law principle that what the witness has testified to he wilfully knew to be false. The court fails to distinguish between perjury and mistake, and in such respect its charge was erroneous. Remington v. Geiszler, 30 N.D. 357, 152 N.W. 661, and cases cited; State v. Johnson, 14 N.D. 290, 103 N.W. 565; McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685; State v. Campbell, 7 N.D. 58, 72 N.W. 935.

Lawrence & Murphy, for respondent.

To make a contract there must be an offer and an acceptance.

"There must be a meeting of the minds of the parties as to all essential elements. Both parties must understand the same thing in the same sense, and both parties must be bound, or neither is bound. There must be a meeting of minds on the subject-matter, relative to which the proposal and acceptance were in fact made and entered into." 1 Elliott, Contr. p. 24.

It is only in cases where it is probable that the witness has knowingly and intentionally testified falsely, that the jury is warranted in disregarding his entire testimony. McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685; State v. Campbell, 7 N.D. 58, 72 N.W. 935.

GRACE, J. ROBINSON, J. (concurring).

OPINION

GRACE, J.

This is an appeal from the judgment of the district court of Cass county.

The issues of such case were tried to a jury, and a verdict was returned by them in favor of the defendant.

The facts in the case are substantially as follows: James H. Grady, deceased, Rose E. Livingston, and Mary Cary were brother and sisters. It is claimed by the plaintiff that, during the lifetime of Grady, she and Grady entered into an agreement whereby each was to contribute ratably to the support of Mary Cary. Plaintiff claimed that Mary Cary was an invalid and unable to care for or support herself. It appears that Grady had taken out a life insurance policy on his life for the sum of $ 3,000, which was payable to Mary Cary after the time of the insured's death. Such insurance upon the life of Grady was collected after his death and paid to Mary Cary. Rose E. Livingston filed a claim against the estate of Grady for $ 1,921.38, claiming that Grady made an express contract with her during his lifetime to contribute ratably to the support of Mary Cary, and that the amount of said claim was the amount due from Grady, none of which had been paid except $ 405. The defendant, to the complaint of the plaintiff, entered a general or specific denial to all of the allegations thereof, except that he admitted the filing of such purported claim.

There are presented in this case but two questions for our consideration. First, the insufficiency of the evidence to justify the verdict of the jury; second, errors of law occurring at the trial from the exclusion of certain testimony offered by the plaintiff, and alleged erroneous instructions of law by the court. In order to determine whether or not the evidence is sufficient to sustain a verdict, it is well to refer to the pleadings in the case to determine what matters were put in issue by such pleadings. One of the main matters relied upon by the plaintiff, and largely the one upon which her entire claim rests, is the assertion in the complaint that at a certain time during the lifetime of Grady the plaintiff and he entered into an agreement whereby they should jointly care for and furnish medical attendance to, and incur other expenses in connection with the care and keep of Mary Cary, their sister, during her lifetime, and should equally share the entire expense with reference thereto. Plaintiff alleges her reliance upon such promise and agreement, and claims she thereby incurred expense to the amount of $ 3,824.75. She has filed her claim against the estate of Grady in one half that amount, less a certain credit hereinbefore stated. The complaint does not allege whether the alleged agreement was in writing or was made orally. We assume from the complaint the alleged agreement was not in writing, but, if entered into at all, was entered into orally.

In the trial court such agreement was claimed and relied upon as an express contract. Whether such contract was in fact made was a question of fact exclusively for the jury. There was some testimony tending to show that such contract was made. There was other testimony which tended to show that such contract was not made. The testimony of Mrs. Grady, the widow of the deceased, was to the effect that she was present at the Nicollet Hotel, in Minneapolis, at the time when said alleged agreement was claimed by the plaintiff to have been made, and did not hear anything of the contract referred to. This tends of course to prove that no contract was made. While negative testimony may not be entitled to as much weight and credit as positive testimony, we must not overlook the fact that the weight of testimony is exclusively a question for the jury. Whether or not there was an express agreement was a disputed question of fact about which there was conflicting testimony either of a positive or negative character, or both, and it was the exclusive duty of the jury to weigh all such testimony. It did so and returned a verdict in favor of the defendant, and such verdict was sufficiently supported by the evidence.

Plaintiff makes a further claim of error in regard to admission of testimony concerning a certain insurance policy for $ 3,000, to which we have before referred claiming that the defendant having interposed no plea of payment, all the testimony with reference to the insurance was inadmissible. While it is true that the answer does not contain any...