Neal v. Clark

• Decision Date: 22 January 1941
• Docket Number: 15206.
• Citation: 12 S.E.2d 921,196 S.C. 139
• Parties: NEAL v. CLARK.
• Court: South Carolina Supreme Court

12 S.E.2d 921

196 S.C. 139

NEAL v. CLARK.

No. 15206.

Supreme Court of South Carolina

January 22, 1941

Perrin & Tinsley, Osborne, Butler & Moore, and Jesse W Boyd, all of Spartanburg, for appellant.

Johnson & Johnson and J. C. Mooneyham, all of Spartanburg, for respondent.

BONHAM Chief Justice.

The plaintiff and defendant are brother and sister. They have two sisters, Mrs. Frances C. Keel and Mrs. Sallie C. Brannon. The plaintiff-respondent alleges in her complaint that their mother, Mrs. Leatha Clark, made, on the 10th day of February, 1932, a partial distribution of her estate to her four above-named children by giving to each of them one-fourth of the sum of the notes owed to her by the four children; that the total of this sum amounted to $10,417.48 that the amount of the notes owed by Mrs. Keel was $2,774.44 that owed by Mrs. Brannon was $1,903.87; that owed by Mrs Neal was $129.68; and that owed by N. T. Clark was $5,609.19; that the defendant agreed with the other parties to the settlement to pay the plaintiff's share to her. That the plaintiff had no knowledge of the settlement until the fall of 1937; that plaintiff's share, one-fourth of the aggregate sum of the notes, was $2,604.29, from which was deducted the sum of $129.68, the amount of the note owed by plaintiff to her mother, which left the sum of $2,474.61 due to plaintiff by the terms of the settlement agreed to by the parties. That defendant has refused and refuses to pay the said sum to plaintiff after demand therefor. The complaint further alleges that under the will of M. G. Clark, father of the plaintiff, N. T. Clark, the defendant herein, was named trustee for the plaintiff.

It may be stated here that it is admitted that plaintiff is a deaf mute.

The prayer of the complaint is for $2,474.61 and interest.

For answer, defendant admits that he was trustee for certain property under the will of M. G. Clark in which plaintiff had a beneficial interest, but alleges that the estate of M. G. Clark has long since been wound up and settled. He denies paragraph four of the complaint, and alleges that after the death of his father, M. G.

Clark, in 1922, his mother, Mrs. Leatha Clark, spent most of her time in his home until her death in the fall of 1937, and continually called on him to perform specific errands, duties and services for her, which he did under her directions and according to her wishes, and that she handled and attended to her own business affairs, having custody and control of her own property and money. He denies paragraphs 5, 6, 7, 8, 9, 10 and 11 of the complaint, and alleges that if any such transactions as are therein outlined took place among his sisters, Sallie C. Brannon, Frances C. Keel and his mother, the consummation of such transaction was never communicated to him by his mother and that no memorandum thereof was ever written or signed by this defendant, or by anyone else with his knowledge; and the only notes he owed his mother were certain notes for $5,000, $700 and $895.30, which he paid and settled with his mother; which payment and settlement the said Leatha Clark endorsed on the said notes and delivered to defendant, and that said notes and this defendant's liability thereon, matured more than six years before the commencement of this action and he pleads the statute of limitations as a bar thereto; and the transactions alleged in these paragraphs occurred more than six years before the commencement of this action and he pleads the statute as a bar thereto.

The case was heard by Judge A. L. Gaston and a jury and resulted in a verdict for the plaintiff for the amount claimed.

At the appropriate time in the course of the trial the defendant made a motion for directed verdict, which was refused. After the verdict was rendered, defendant moved for a new trial, which was granted nisi.

The appeal is from the occurrences of the trial, including alleged errors, relating in some instances to admission of testimony over objections, and in some instances to the refusal of admission of testimony; and to alleged errors in the charge; and to the refusal of the motion for directed verdict; and there is also appeal by plaintiff from the order granting new trial nisi.

We shall not undertake to consider each of these exceptions seriatim, but will give all of them consideration and will cover them by our conclusion.

The first exception challenges the correctness of the ruling which allowed the introduction of the statement set out in the record as Exhibit F., page 133. It figures largely in the case and it is well to have it before us. It is as follows: "This is to certify that on February 10, 1932, I held notes from Dr. N. T. Clark, Frances Keel and Sallie C. Brannon and Nannie Neal, all of which were added together, with interest added, and divided in four equal parts, and according to all calculations, after giving or allowing Dr. N. T. Clark and Frances Keel their shares, it was found that Dr. N. T. Clark owed Sallie C. Brannon $529.41, and Frances Keel owed Sallie C. Brannon $171.20, for which she gave her note for $170.00 to Sallie C. Brannon, with cash $1.20. The share due to Nannie C. Neal was $2,475.04, which was to be paid to her by Dr. N. T. Clark. This is to certify also that Dr. N. T. Clark has not paid or given his note for $529.41, the amount he owes to Sallie C. Brannon to this date, however note or money of Sallie C. Brannon share was to have been paid or note given by Dr. Clark at once when settlement was made. I gave Dr. Clark, Frances Keel and Sallie C. Brannon their notes with understanding they were settled for as money due me or my estate providing they, Dr. N. T. Clark and Frances Keel, pay to my other two children, Sallie C. Brannon and Nannie Neal, amounts stated on this statement. (Signed) Mrs. M. G. Clark."

Defendant objected to the statement solely on the ground that: "It does not appear to be identified with Dr. Clark, the defendant, in any way whatever. It is merely a statement."

In his argument, defendant's counsel says it is objectionable as hearsay; that Mrs. Clark who made the statement is dead and is not subject to cross-examination. It does not appear by the record that these grounds of objection were made when the paper was offered in evidence and were not passed on by the trial judge. They may not be urged now. It needs no citation of authorities in support of that proposition.

In the case of Hubbard v. Rowe et al., 192 S.C. 12, 5 S.E.2d 187, in an opinion written by Chief Justice Stabler, syllabi 1 and 2 say:

"1. To preserve question for review, it is required only that question first has been fairly and properly raised in trial court and passed on by that court.

"2. The trial court must be given an opportunity on motion for a new trial of passing on and correcting questions specifically affecting the verdict, or other questions not specifically ruled on, before they will be reviewed by the Supreme Court on appeal."

In the case of Owens v. Owens, Mayor, 193 S.C. 260, 8 S.E.2d 339, 343, this is said by this court: "There does not appear to be anything in the complaint, or other parts of the record, in any way bearing on these questions. They were never presented to the Circuit Judge, and were in no way passed upon by him."

In the case of Johnson v. Johnson, 194 S.C. 115, 8 S.E.2d 351, 355, it is said: "Since the Circuit Court did not pass upon the question of whether or not the plaintiff is entitled to recover attorney's fees, it would not be proper for us to pass upon that issue."

In his order in the case, the Circuit Judge said, page 160 of the record: "The defendant in support of their motion for a new trial submit that it was error to admit in evidence the written statement marked 'Ex. F,' signed by Mrs. M. G. Clark, which stated in substance that she did make a gift of $10,417.18 to her then four living children, and that the defendant was to pay over to the plaintiff her pro rata share of the same. This statement of Mrs. Clark was executed in the presence of W. W. Brannon and Michael Nantz, disinterested witnesses, who both appeared at the trial and identified Mrs. Clark's signature. This instrument was admitted in evidence over the objection of the defendant, who claims that it was not admissible because the defendant was deprived of the right to cross-examine the signer of the statement. (Italics added). It was admitted for the purpose of showing what disposition Mrs. Clark made of her estate. It was a statement against her interest, as she was purporting to give away the sum of $10,417.18, and I can conceive of no reason why she did not speak the truth. If for any reason she should ever have attempted to recover the property she gave away, this would certainly have been competent evidence against her as making a valid gift; and I think it was competent evidence in this case to show what disposition she was making of her estate."

It is certain that Judge Gaston has never passed upon the issue that the statement was hearsay and inadmissible for that reason. It is not proper for us to pass upon that issue. We think the statement was admissible, as is shown by the order and by the authorities cited by the Circuit Judge and by others cited by the respondent.

Defendant's second exception challenges the action of the trial judge in overruling the objection to the evidence "about the bringing and settlement of an action by Mrs. Brannon against Dr. Clark on a similar cause of action to that being tried in that (a) the compromise disposition of that action was not competent on any issue in this case, and (b) at most it could only be admissible as testing the credibility of the witness Mrs. Brannon, and further testimony of W. W. Brannon thereabout was not by way of...