Peterman v. Peterman

• Decision Date: 14 March 1984
• Docket Number: No. 54175,54175
• Citation: 447 So.2d 126
• Parties: Fred J. PETERMAN, Jr., Linda Mae Lerille and Sharon P. Balkum v. Hunter I. PETERMAN.
• Court: Mississippi Supreme Court

Page 126

447 So.2d 126

Fred J. PETERMAN, Jr., Linda Mae Lerille and Sharon P. Balkum v. Hunter I. PETERMAN.

No. 54175.

Supreme Court of Mississippi.

March 14, 1984.

Nicholas M. Haas, Bay St. Louis, for appellants.

W.F. Holder, II, Gulfport, for appellee.

Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.

BOWLING, Justice, for the Court:

This appeal involves the attempt to set aside a conveyance of real property executed by the deceased prior to her death. Mrs. Amelia Lott Moreau, a resident of Hancock County, Mississippi, died on July 27, 1980, at the age of 83. On March 11, 1980, Mrs. Moreau executed a deed to her only surviving child, the appellee Hunter I. Peterman, a resident of New Orleans, Louisiana. The appellants, complainants below, are the three children of Mrs. Moreau's deceased son, Fred J. Peterman. He and Hunter were Mrs. Moreau's only children. The children's father had been deceased for a number of years.

Beginning the latter part of 1979, Mrs. Moreau had a very upsetting and depressing life. A great grandson, the son of Fred J. Peterman, Jr. one of the appellants, was killed in an accident; the husband of her granddaughter, one of the appellants, died; on January 26, 1980, Fred J. Peterman, Sr., one of her two sons and the father of appellants, died; and during this period of time Mrs. Moreau suffered a severely injured hip. The evidence is undisputed that all of these occurrences, particularly the death of her son, Fred J. Peterman, threw Mrs. Moreau into a state of deep depression. She was carried to New Orleans and on February 12, 1980, taken to the office of Dr. Lelia Angel, an internal medicine specialist. Mrs. Moreau was confined at Touro Infirmary under Dr. Angel's care for a number of days. According to Dr. Angel, during the first part of this hospitalization Mrs. Moreau was "near comatose and lethargic." She improved and following her discharge, Dr. Angel saw her again on March 7. Dr. Angel testified that at that time Mrs. Moreau was alert and the doctor described this condition to mean that if Mrs. Moreau was spoken to she would respond and if asked to turn over or take a deep breath, she would respond. At Dr. Angel's suggestion, Mrs. Moreau was placed in a nursing home where she stayed only a short time and was taken by appellee Hunter I. Peterman to his home in New Orleans. During the period of time prior to her death, Mrs. Moreau again was placed in a nursing home, but remained there only a short time before being transferred to appellee's home again. Dr. Angel last saw Mrs. Moreau on March 24 when she advised placing Mrs. Moreau in a nursing home with close supervision.

At the trial the chancery judge of Hancock County, at the conclusion of appellant's evidence, excluded that evidence on appellee's motion and entered a decree for appellee. The chancellor held that a fiduciary or confidential relationship was not shown to exist between Mrs. Moreau and her son Hunter I. Peterman. The chancellor further held affirmatively that appellants did not meet their burden of proving the deed from Mrs. Moreau to appellee to have been secured by misrepresentation or undue influence.

As stated the deed was executed by Mrs. Moreau on March 11, 1980, after she had had the shocks and gone into a deep depression as hereinbefore described and in the physical condition as described. It was executed shortly before a competent physician advised close supervision of Mrs. Moreau in a nursing home. Mrs. Moreau was staying in appellee's home at the time the deed was executed.

There are three different principles of law that require a reversal of this case. These principles have been gone into thoroughly by this Court over many years and we hope that we can set them out in such plain and unmistakable ways that the bench and bar will recognize them in the future as was not done in the case sub judice.

Included in the record of the cause both before the lower court and this Court, are pretrial interrogatories and answers thereto served on appellant Fred J. Peterman, Jr. and included in the record both before the chancellor and this court is a deposition taken of appellant Fred J. Peterman, Jr. by appellee, defendant below, at appellee's sole instigation. Without going into details, a reading of this deposition shows just about as clear a case of fiduciary and confidential relationship between Hunter I. Peterman and the deceased as could be described. The record coming from the chancery court is not clear as to what happened in regard to the interrogatories and answers thereto and the deposition being in the record. Regardless of this, the situation resulting from these instruments would be the same.

As stated, although the record is rather cloudy, the chancellor was of the opinion that appellant Fred J. Peterman, Jr. could not testify under Mississippi Code Annotated, Section 13-1-7 (1972), which is the well known "dead man's statute". In the recent case of Rand v. Moore, 414 So.2d 885 (Miss.1982), we reaffirmed what the cases from this court before indicated for many years. We had a similar situation as we have in the case sub judice, where the testimony of a witness Coleman was denied under the "dead man's statute" after the party, whom the statute gave a privilege to, secured the deposition and answers to interrogatories of Coleman. We stated in that case clearly and unmistakably the following:

The trial court properly overruled the appellee's objection to the testimony of Ross Coleman, which objection was made on the grounds that it was in violation of the so-called dead man's statute, Mississippi Code Annotated section 13-1-7 (1972). Coleman's testimony was competent because the appellee propounded interrogatories to Coleman with reference to the gift of certificate No. 1189 and by so doing made Coleman a witness and thereby waived any privilege that the estate might have had under the dead man's statute. The appellee had the right to waive the privilege on behalf of the estate since her suit was seeking to recover assets for the benefit of the estate. Lipson v. Lipson, 183 So.2d 900, 906 ...