Pence v. Waugh

• Decision Date: 29 September 1893
• Docket Number: 16,236
• Citation: 34 N.E. 860,135 Ind. 143
• Parties: Pence et al. v. Waugh et al
• Court: Indiana Supreme Court

34 N.E. 860

135 Ind. 143

Pence et al. v. Waugh et al

No. 16,236

Supreme Court of Indiana

September 29, 1893

From the Whitley Circuit Court.

The judgment is affirmed.

T. R Marshall and W. S. McNagny, for appellants.

J. S Collins, A. A. Adams, A. Zollars and B. T. Calvert, for appellees.

OPINION

Hackney, J.

This appeal is from an action by the appellants to contest the last will of Joseph Waugh. The alleged grounds of contest were the unsoundness of mind of the testator, and that the will was unduly executed. All of the questions discussed arise upon the alleged error in overruling appellants' motion for a new trial.

One af the alleged causes for a new trial was the action of a juror in not basing his verdict upon the law and the evidence, but in following the answer, real or supposed, to his prayer for proper guidance in determining the rights of the parties litigant. This element of the motion is verified by the affidavit of one of the counsel for appellants, which affidavit is not in the record by bill of exceptions. The question upon the action of the juror will, therefore, not be considered. Kleespies v. State, 106 Ind 383, 7 N.E. 186, and cases there cited.

Joseph Pence, a witness for the appellants, had testified to certain facts upon which he gave an opinion that the testator was of unsound mind. Certain of the facts were the failure of memory as age advanced, and the frequent statements of the testator that his memory was failing, and the witness was asked, on cross-examination, if "a great many old men in his community say their mind is not as good as it used to be?" This question, over the objection and exception of the appellants, was answered by saying: "I know some; yes." The point against this examination is that it is foreign to the case to inquire what men other than the testator said of their conditions of mind. Taken in the connection in which the question was asked, its manifest object was to ascertain if it was the opinion of the witness that all old men were of unsound mind because of the failure of memory. The answer was that he knew some men whose memories were weakened by age. Standing alone, the inquiry would probably not be strictly proper, but we are unable to observe its injury to the cause of the appellants. If the claim of the witness had been that age makes inroads upon the memory, as a rule, and that is as much as can be said of the question and answer, the effect upon appellants' case would rather have been beneficial than injurious.

In the course of the further cross-examination of said witness, he was asked: "Did you regard that contract as unreasonable, unreasonably high, or unreasonably low, so as to indicate the old man wasn't right?" The contract referred to was one between the testator and his grandson, concerning the management of the former's farm, and, in testing the strength of the opinion of the witness, as to mental capacity, it was proper to inquire whether, in his opinion, the contract, the making of which formed a part of the facts upon which his judgment of mental capacity was based, was a reasonable or unreasonable transaction. The witness, his intelligence, and the value of the facts upon which his opinion rested, were upon trial by the cross-examination, and if he regarded the transaction as a reasonable one, that fact took the circumstance from the support it may have appeared to give the opinion. We do not regard the inquiry as beyond the legitimate scope of a cross-examination. Nor was it error to ask the witness if, at the time he paid the testator a sum of money, he regarded him as of unsound mind. Though the ultimate question is the condition of mind at the time the will was executed, it has never been doubted that prior or subsequent conditions are proper in determining the condition at the particular time. As before said, the good faith of the witness is upon trial under the cross-examination, and it is proper to consider whether he continued business transactions with a man he believed of unsound mind, or whether, in good faith, he regarded him as compos mentis then. Rush v. Megee, 36 Ind. 69.

The question asked and held improper in Staser v. Hogan, 120 Ind. 207, 21 N.E. 911 (216), was: "Mr. Mesker, would you have taken a note from John C. Staser during the last year of his life? Did you ever hear any body in his life question his sanity?" The opinions of others than the witness were not on investigation by the cross-examination, especially of those not under oath. Nor was it important what transactions the witness might have had with the testator, but it would have been, as it was in this case, proper to test the character of transactions actually had, and which form a part of the basis of the witness' opinion as to sanity.

Another question, on the cross-examination of Nancy Waugh, is said to have been erroneous. It was as to whether she understood, in her examination in chief, the question as to her husband having been "afflicted with the infirmities of age," and a suggestion that it was meant to inquire if, as he grew older, he became more feeble. There is no impropriety in an inquiry as to whether a witness understood a question.

On the examination of one Wendle, on behalf of the appellant, it was asked that a certain conversation between the witness and the appellee David M. Waugh be stated. Over the objection of the appellees, the witness answered that "David spoke of making hay--it was wet, and the old man was crying about making hay, and he said he wished he hadn't taken the hay, and he said he would have nothing to do with the old man; that he was old and childish, and that he would not rent another * * foot of ground from him."

On motion of the appellees the answer was stricken out, and now the appellants contend that the words "and the old man was crying about making the hay," was the statement of such an occurrence as a fact, and that if the old man cried about making hay, it was a proper circumstance to be proven.

The answer involves in doubt whether the witness saw the old man crying, and states the circumstances as a fact independent of what David said or whether the words are from David's statement. However, as appellants contend that it was proper as an independent fact, stated as within the knowledge of the witness, it is in no manner responsive to the question asked, and formed no proper part of David's statement, and was, therefore, properly stricken out. On the trial, it was insisted that the conversation by David contained an admission by him that the testator was "old and childish," which admission was proper evidence against David. While appellants do not insist upon this position in this court, it may well be doubted whether, if all the words of the answer were David's, the declarations of one contestee against the validity of the will may be given in evidence. Shorb v. Brubaker, 94 Ind. 165; Ryman v. Crawford, 86 Ind. 262; Hayes v. Burkam, 67 Ind. 359.

The physician who attended the testator in his last illness was a witness for the appellees, and after testifying to an extended acquaintance with him and as to the disease of which he died, was asked how long the disease had lasted, when appellants objected to anything ascertained from the patient or observed in the sick room, on the ground that such matters were privileged.

The court overruled the objection and appellants excepted. Without pressing the question asked or permitting an answer to it, the appellees asked another question as to the character of the illness instead of its duration, which question was answered without objection. The question asked and objected to having been abandoned and no answer given to it, no harm was done by the ruling, even if the judgment of the court in supporting such ruling had been wrong.

Some time later, in the course of appellee's examination of said witnesses, it was asked, in relation to the time of testator's sickness: "Do you know whether he walked around?" Which the witness answered: "He did; yes, sir; against my orders, though." Here counsel for appellants stated: "The court understands my objection goes to the entire testimony of the witness, so as not to keep repeating them. We desire the same objection to go to all of this,--that the relations were confidential." The witness had stated many things within his knowledge and observation not gained as a physician, and the objection having been made to all of the testimony when part of it was not subject to such objection, it was not error to overrule the objection. Binford v. Young, 115 Ind. 174, 16 N.E. 142, and cases cited.

Objections, in practice, are usually addressed to the questions, and it is not a favored practice to permit counsel to delay until it may be learned if answers are injurious before objecting. The character of the answer is always indicated by the question asked, and opportunity is given for objection before answer. If the answer is not what might have been anticipated from the question, then it is not properly responsive, and the rights of the adverse party are not lost by delay in objecting, for he may then move to strike out the answer.

In this instance, the answer objected to and the evidence preceding it do not disclose whether the walking by the testator was in the sick room and observed by the physician while present attending him, or upon the streets or on the farm where the witness occupied no relation of confidence to him. Counsel for appellant say, in this connection, that "unfortunately matters of fact and professional observation are so blended that it will require a reading of the whole of his evidence in order to decide this question." Sitting as a court of review, and it being our duty, where we reasonably may, to...