Northwestern University v. Crisp

• Decision Date: 13 June 1955
• Docket Number: No. 18965,18965
• Citation: Northwestern University v. Crisp, 88 S.E.2d 26, 211 Ga. 636 (Ga. 1955)
• Parties: NORTHWESTERN UNIVERSITY v. Charles F. CRISP, Executor.
• Court: Georgia Supreme Court

Page 26

88 S.E.2d 26

211 Ga. 636

NORTHWESTERN UNIVERSITY v. Charles F. CRISP, Executor.

No. 18965.

Supreme Court of Georgia.

June 13, 1955.

Syllabus by the Court.

1. A witness may be twice examined by the same party, by commission, in the same case.

2. For reasons stated in the opinion, the court erred in denying the amended motion for new trial.

Mrs. Jeannette C. Mix executed a will on October 27, 1939. After making relatively small gifts to the University of Michigan and to others, she, by item 5 thereof, gave the residue of her estate to Northwestern University as a memorial to her deceased husband, Dr. Charles L. Mix, and to be used by it for research in the physical causes and cure of mental diseases. By a codicil which was made on June 12, 1940, she gave her sisters, Mrs. Fannie C. Unterkircher and Mrs. Minnie B. Mitchell, certain realty in Putnam County, Florida. By a codicil which she executed on July 18, 1942, she stated that she had made certain advances to her sisters, Mrs. Unterkircher and Mrs. Mitchell, which she wanted deducted from the amounts bequeathed to them by her original will. By another codicil, dated September 24, 1953, item 5 of her original will was changed to read as follows: 'All the rest, residual and remainder of real, personal and mixed property, I give, devise and bequeath to the following trustees: 'Charles F. Crisp and Dr. Russell Thomas, of Americus, Georgia, and my beloved nephew, Donald B. Caldwell, in trust nevertheless for the following use and purpose: to establish the Charles L. Mix Memorial Fund as a memorial to my late husband, Charles L. Mix, M. D., formerly a beloved physician of Chicago, said trustees to use the proceeds and corpus of the trust fund as they deem fit and most advisable for research in the physical causes and cure of mental disease.' Mrs. Mix died on October 2, 1953, and Charles F.Crisp, the nominated executor, offered her will for probate in solemn form. The Northwestern University responded to the probate petition and averred that the instrument executed by Mrs. Mix on October 27, 1939, with the codicils of June 12, 1940, and July 18, 1942, was the last will and testament of Mrs. Mix and that her will was not changed by the purported codicil of September 24, 1953, since it was executed by her at a time when she did not have testamentary capacity and because it was executed as the result of undue influence exercised over her by Dr. Russell Thomas, one of the trustees named therein. The instrument offered for probate, including the codicil of September 24, 1953, was probated in solemn form by the Ordinary of Sumter County on December 14, 1953. In due time the caveator appealed the probate proceedings to the Superior Court of Sumter County. After appeal, the caveat was amended. One amendment avers in substance that Dr. Russell Thomas, as business agent and personal physician of Mrs. Mix, had the purported codicil of September 24, 1953, prepared by his nephew without request by or knowledge of Mrs. Mix; that she did not read it, it was not read to her, and because of her mental and physical condition she did not know its contents and its execution was in fact the act of Dr. Russell Thomas. By the other amendment the caveator admitted a prima facie case in favor of the propounder, but averred that the codicil of September 24, 1953, was in truth and in fact not the will of Mrs. Mix for all of the reasons set forth in the original caveat and the prior amendment thereto and also for the following reasons: that for several weeks prior to September 24, 1953, and on said date and within a few hours prior to the execution of the purported codicil, Dr. Russell Thomas, as her attending physician, administered to her, and caused others in attendance to administer to her, narcotics and drugs to the extent that she was under the influence of such narcotics and drugs when the codicil of September 24, 1953, was signed by her and because of the narcotics and drugs so administered, she was rendered unable to sign her name without assistance and deprived of mental capacity to know what she was doing; and that Mrs. Mix, because of advanced age, the ravages of the diseases from which she was suffering, and the effect of the narcotics and drugs administered to her by or under the direction of Dr. Thomas, did not have sufficient mental capacity to understand that the paper presented to her was a codicil to her will, or to conceive an express and intelligible plan for the disposition of her property or to have a rational desire as to the disposition of it; nor memory enough to know generally what property she owned or to recall those related to her by the ties of either blood or affection. A jury, on the first trial of the case, was unable to reach a verdict and a mistrial was declared by the court.

On November 3, 1954, the caveator served notice on the propounder's attorneys of record of its intention to take the deposition of Dr. Russell Thomas on November 9, 1954, pursuant to the provisions of Code, § 38-2301; and on November 3, 1954, Eugene Horne, the commissioner before whom the deposition was to be taken, issued a subpoena duces tecum which was duly served on Dr. Thomas, requiring him to appear at a specified time and a designated place for the purpose of giving his deposition, and also to produce before the commissioner, to be used as evidence by the caveator, all of his account books showing the amount of monies received as medical fees, gifts or otherwise, for a five-year period ending October 2, 1953. Dr. Thomas filed a written motion to suppress the notice of the retaking of his deposition and to quash the subpoena duces tecum alleging that he has already been examined by the caveator by deposition on April 15, 1954, and again when he testified as a witness in the cause when it was tried in the Superior Court of Sumter County at the May term, 1954; that he is a practicing physician and the unnecessary retaking of his deposition will seriously impair his ability to properly care for and look after his patients; that no order to retake his deposition has been obtained from the court; and that the retaking of his deposition is for the purpose of harassing and annoying him. By a written response to Dr. Thomas' motion, the caveator averred that under the laws of Georgia there can be no objection to the retaking of depositions for the purpose of obtaining new evidence; that Dr. Thomas is the person who exerted undue influence over Mrs. Mix for the purpose of persuading her to change her will when she did not know what she was doing because of the narcotics and drugs administered to her by him and others by his direction; and that facts concealed by him which are vital and material to a determination of the issues in the cause have been discovered since he was last examined. A hearing was had on the motion and response, and on November 20, 1954, Judge Rees entered an order that Dr. Thomas furnish caveator's attorneys with information as to all financial transactions between himself and Mrs. Mix only for the twelve-month period next prior to her death together with the amounts, purpose and times of payment and that the examination of him by deposition by limited to his financial transactions with Mrs. Mix for the same period. As thus restricted, the caveator declined to examine Dr. Thomas. There is a proper exception to the restricting order.

The second trial of this case lasted seven days, much evidence was introduced by the parties, and the court, when the introduction of evidence was concluded, directed a verdict in favor of the propounder. The caveator, in due time, moved for a new trial on the usual general grounds and later amended its motion by adding several special grounds, one of which alleges that the court erred in directing a verdict for the propounder. The amended motion for new trial was denied, and the caveator excepted to that judgment and used out a writ of error to this court.

Thos. O. Marshall, Jr., Dykes, Marshall & Dykes, Americus, Robert B. Troutman, Griffin B. Bell, Spalding, Sibley, Troutman & Kelley, W. K. Meadow, Atlanta, Ralph K. Ball, Evanston, Ill., for plaintiff in error.

Smith & Undercofler, Americus, Foley, Chappell, Kelly & Champion, Columbus, for defendant in error.

CANDLER, Justice (after stating the foregoing facts.)

1. The Code, § 38-2301, provides: 'In all counties, either party litigant in any court of record in any such county may, without any order or commission, take the deposition of any witness or witnesses in any case, whether resident in the county or not, upon giving the opposite party five days' notice of the time and place, with the names of the witnesses. The commissioner before whom the evidence under this section is to be taken shall have power, on notice being given to the opposite party or his attorney, or on subpoena duces tecum being served five days previously to the hearing, to require any witness or party to produce, at the hearing, books, writings, and other documents in his possession, power, custody, or control. * * *' The notice given by the caveator of its intention to take the deposition of Dr. Russell Thomas and the subpoena duces tecum which the commissioner issued requiring the production of documents were under the quoted Code section. As shown by our statement of the facts, Judge Rees denied the motion of Dr. Thomas to suppress the deposition notice and to quash the subpoena duces tecum but restricted the scope of the examination and limited it to financial transactions between Dr. Thomas and Mrs. Mix during the twelve months immediately prior to her death. This was error. When depositions are taken, the order and scope of the examination must conform to the rules of the superior court governing the examination of witnesses in trials at law. Code, § 38-2305; Realty Construction Co. v. Freeman, 174 Ga. 657, 163 S.E. 732. In Parker v. Chambers, 24 Ga. 518, it was said in headnote...