Nohra v. Evans, 12086

• Decision Date: 01 May 1974
• Docket Number: No. 12086,12086
• Parties: Helen NOHRA, by next friend, Dr. Herbert Nassour, Appellant, v. James T. EVANS et al., Appellees.
• Court: Texas Court of Appeals

Page 648

509 S.W.2d 648

Helen NOHRA, by next friend, Dr. Herbert Nassour, Appellant, v. James T. EVANS et al., Appellees.

No. 12086.

Court of Civil Appeals of Texas Austin.

May 1, 1974.

Ronald J. Freeman, Byron Lockhart, Austin, for appellant.

William S. Frank, Houston, for appellees.

O'QUINN, Justice.

Appellant brought this suit by next friend seeking to annul a deed and other instruments, through which appellees acquired title to eight parcels of real property, and alleged as ground for rescission her lack of mental capacity to execute the instruments. ¹

Upon a verdict, in which the jury failed to find that appellant lacked mental capacity to make the instruments, the trial court entered judgment that appellant take nothing by her suit. Appellant brings the sole point of error that in charging the jury the court failed to submit a definition of mental capacity to include as one of the elements the ability of a person to exercise his or her will.

Decision in this appeal turns on whether appellant was entitled to the requested definition of mental capacity as follows:

'The term 'mental capacity' means the ability of the person involved to appreciate the effect of what he or she was doing, to understand the nature and consequences of his or her acts and the business he or she was transacting, And to exercise her will in relation thereto.' (Emphasis added)

The definition requested is identical with the definition submitted by the court, except the final clause as italicized, added by appellant.

As stated by appellant, the basis for error is not a contention '. . . that the jury's answers are contrary to the evidence in this case. Rather, Appellant complains only that the instructions . . . (defining) the term 'mental capacity' were incomplete in that the Trial Court failed to include therein the element of will, and, therefore, did not bring to the attention of the jury in their considerations, that element and the evidence relating thereto.'

The position of appellant stems from the claim that the maker of the instruments was 'suffering from the mental illness of manic-depressive,' and that the test of understanding, or consciousness, is insufficient, without enlarging the test to include the element of volition, or will, of the person making the instrument. 'The testimony in this case,' appellant argues, 'shows that manic-depressives in general, and this appellant in particular, suffer volitional impediments as a result of the mental disease with which they are afflicted.'

A medical witness testified that a person who is manic-depressive, while in the depressed stage, becomes 'lethargic,' and that the afflicted person's 'judgment is faulty and impaired as far as his intentions and motives' are concerned; that in all probability, while in the depressed stage, such patients will understand what they are doing, but will be out of touch with reality because the disease will 'distort their will.'

Two members of appellant's family, shown by the record to have been present on the occasions when appellant executed the contract, the deed, and the deed of trust, testified that appellant was a shrewd businesswoman, but that at the time she executed the documents she was depressed and was 'very susceptible to suggestion' and that on the dates appellant signed the papers 'she would have signed anything you told her to sign.' The witnesses also testified that appellant did not bother to read any of the documents and although she understood what she was doing, appellant did not care.

In her fourth amended original petition, on which she went to trial, appellant pleaded that 'For more than ten years Plaintiff has been experiencing a form of mental illness which has been medically diagnosed as a manic-depressive illness. * * * As a result of this illness, Plaintiff experiences recurring periods of depression during which her ability to reason, relate, and focus on problems and reach decisions is significantly impaired. During these periods of depression, Plaintiff lacks the ability to understand and appreciate the nature and consequences of her actions As well as the ability to exercise her will in relation to her actions. It was while Plaintiff was in such . . .' periods of depression that Defendants secured Plaintiff's signature on the instruments which Plaintiff by this suit seeks to cancel. (Emphasis added)

The trial court, in instructing the jury, employed the definition of mental capacity found in numerous decisions in this state. 'The general definition of the term 'mental capacity' seems to contemplate the ability to understand the nature and effect of the act in which a person is engaged and the business he is transacting.' Gray v. Allen, 243 S.W. 684, 686 (Tex.Civ.App. San Antonio 1922, writ dsmd.); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 850, 852, affirming, 242 S.W.2d 936 (Tex.Civ.App.1952). Essentially the same rule was stated earlier that if the grantor of a deed 'was laboring under such mental and physical infirmity as to make him incapable of understanding in a reasonable manner the nature and effect of the act he was doing,' the instrument was void, the record showing also want of consideration. Caddell v. Caddell, 62 Tex.Civ.App. 461, 131 S.W. 432 (Texarkana 1910, no writ). See also Johnson v. Johnson, 191 S.W. 366, 368 (Tex.Civ.App. Texarkana 1916, no writ); Board of Regents of the University of Texas v. Yarbrough, 470 S.W.2d 86, 90 (Tex.Civ.App. Waco 1971, writ ref. n.r.e.); Hooks v. Brown, 348 S.W.2d 104, 126 (Tex.Civ.App. Austin 1961, writ ref. n.r.e.).

A definition employing the phrase 'mind and memory' has been approved frequently. In Burleson v. Morse, 172 S.W.2d 361, 363 (Tex .Civ.App. Galveston 1943, writ ref. w.o.m.), the approved definition read, 'By the term 'mental capacity' is meant the possession of sufficient mind and memory to understand the nature and effect of her act in executing the notes inquired about.'

Similar definitions, each employing the term 'mind and memory,' were approved in Pollard v. El Paso National Bank, 343 S.W.2d 909, 913 (Tex.Civ.App. El Paso 1961, writ ref. n.r.e.); Haile v. Holtzclaw, 400 S.W.2d 603, 612 (Tex.Civ.App. Amarillo 1966, rev. on other grounds 414 S.W.2d 916); Klindworth v. O'Connor, 240 S.W.2d 470, 475 (Tex.Civ.App. Dallas 1951, writ ref. n.r.e.); Jackson v. Henninger, 482 S.W.2d 323, 325 (Tex.Civ.App. Austin 1972, no writ).

But a definition incorporating the additional phrase 'to intelligently' understand the nature and effect of the act has been disapproved. Smith v. Thornhill, 34 S.W.2d 803, 804 (Tex.Comm.App.1931); Wright v. Matthews, 130 S.W.2d 413 (Tex.Civ.App . San Antonio 1939, writ dsmd. jmt. cor.).

In her contention that in addition to the test of 'understanding' the trial court should have included the element of exercising 'her will in relation' to the act of executing the written instruments, appellant relies in the main on decisions in five cases: Herndon v. Vick, 18 Tex.Civ.App 583, 45 S.W. 852 (Galveston 1898, writ dsmd.); Farmers' State Bank v. Farmer, 157 S.W . 283 (Tex.Civ.App. Amarillo 1913, no writ); Stewart v. Miller, 271 S.W. 311 (Tex.Civ.App. Waco 1925, writ ref.); Garrison v. Blanton, 48 Tex. 299 (1877), and Bell v. Bell, 237 S.W.2d 688 (Tex.Civ.App. Amarillo 1951, no writ).

We direct our examination and analysis of these authorities to the first three cases only. We do not include Garrison v. Blanton in our analysis for the reason that the mental capacity of the testatrix in that case was unrelated to insanity or mental illness, but was 'a stupor produced by extreme illness, and morphine administered as a medicine.' (48 Tex. 301) In Bell v. Bell, despite an early reference to 'free volition' of the testator, the court applied the test that, 'Under all the facts and circumstances . . . the deceased was Cognizant of the property he possessed, recognized the objects of his bounty and understood the act he was performing' (Emphasis added), and decided the jury's finding that the testator, who was elderly and sick, did not have sufficient capacity to make a will was against the great preponderance of the evidence.

The basis for appellant's contention stems from approval in 1898 by a court of civil appeals of a charge given a jury by the trial court in the case of Herndon v. Vick (45 S.W. 853, col. 1). In that case Andrew J. Vick brought suit against a number of persons to establish his title to 400 acres out of the William Vince League in Harris County. A. C. Herndon, as the guardian, in Texas, of the estate of Frederick Cole, who had been declared Non compos mentis in the State of Maine, answered with a claim, in behalf of his ward, to 'the lower half of the Vince league.' Vick's claim to the land was grounded on adverse possession and perfection of limitation title, unless his title was defeated as to Frederick Cole by the fact of Cole's insanity.

The trial court asked the jury, 'Has said Frederick been, since and on March 30, 1870, to within less than five years before suit herein, a person of unsound mind?' In this connection the court instructed the jury that:

'The law is that limitation does not run against a person of unsound mind, such disability forming an exception; yet, although the mind of a person may be to some extent impaired by disease, still if such person had the ability to transact the ordinary affairs of life, to understand their nature and effect, And to exercise his will in relation to them, he is not deemed of unsound mind, in the sense of the law.' (Emphasis added)

The trial court gave essentially the same instruction in connection with the jury's opportunity to find the negative; that is, that Frederick Cole was not of unsound mind.

On appeal Herndon, as Cole's guardian, contended that the evidence did not warrant submission to the jury the issue of Frederick Cole's unsoundness of mind because it was shown at the trial that judicially Cole had been declared Non compos...