Raymond v. Bailey

• Decision Date: 27 November 1922
• Court: Connecticut Supreme Court
• Parties: RAYMOND v. BAILEY.

118 A. 915

98 Conn. 201

RAYMOND v. BAILEY.

Supreme Court of Errors of Connecticut.

November 27, 1922

Appeal from Superior Court, New London County; George E. Hinman Judge.

Action by Gilbert S. Raymond, conservator for William A. Frazier incompetent, against Emma C. Bailey, revived against her administrator, Howell S. Bailey. From a judgment for plaintiff, defendant appeals. Affirmed.

The writ and complaint in this suit were returned to the court in March, 1918. It alleged that the plaintiff had been duly appointed conservator of William A Frazier, an incompetent person, on January 18, 1918; that for a long time before that day Frazier had been of weak mind, incapable of attending to his business affairs, and in a condition to be unduly influenced; and that on December 4, 1917, the defendant, who was a sister of Frazier, had unduly influenced him to pay over to her $2,500, which she, knowing his mental weakness and incapacity, accepted and appropriated to her own use. An answer to this complaint was filed July 5, 1918, in which the appointment of the conservator was admitted, and the other allegations denied, and which set up as additional matters of defense: First, that the $2,500 was a gift made by Frazier to the defendant; and, second, that Frazier had paid the money to the defendant as consideration for the home she had provided for him in her family. On July 12, 1918, the plaintiff filed his denial of these additional defenses. On May 5, 1920, the defendant died, and on June 10, 1920, George E. Pitcher, as the administrator of her estate, filed a motion to be substituted as defendant in the suit, and this motion was granted on June 18, 1920. On January 21, 1921, Howell S. Bailey, as administrator of the same estate, entered by order of court to defend the action. On March 11, 1921, William A. Frazier, on his motion asserting that he had become mentally competent, and that his conservator had been removed, was substituted as plaintiff. In this form the action came to trial November 17, 1921, and the plaintiff and the defendant appeared and were at issue to the jury under the pleadings then on file. On that day the plaintiff, Frazier, completed his direct testimony and cross-examination, and the trial was adjourned until November 22, 1921. When the court opened on that day, the plaintiff presented a motion to amend his complaint by adding a second count, in which he set forth that, on or about the date stated in the first count, and when he was in the weak mental condition described in that count, he lent $2,500 to Emma C Bailey, and no part of the same had been repaid. Over the defendant's objection, the court granted this motion, and allowed this second count to be added to the complaint. Thereupon the defendant filed an answer denying all the allegations of the additional count, and by leave of court recalled the plaintiff, Frazier, as a witness, and further examined him to such extent as he desired.

No evidence was offered that any claim in writing had been exhibited or presented by or for the plaintiff to the administrator of the estate of Emma C. Bailey within the time limited by the probate court for the presentation of claims but no claim of law based upon, nor any reference to, this omission was made during the trial or in the charge to the jury.

Thomas M. Shields, of Norwich, for appellant.

Arthur F. Libby, of Norwich, for appellee.

BURPEE, J.

The court made no error in denying the defendant's motion to set aside the verdict. It is admitted that the plaintiff, Frazier, when he caused this suit to be begun by his conservator, when he had his conservator removed, and took charge of the conduct of the case in place of his conservator, and when he testified during the trial, knew what he was doing and what he and his sister had done. He might not have understood what significance and interpretation the law would put upon their acts, but he remembered the facts clearly, and stated them intelligibly and fully, if somewhat ramblingly. His credibility and the weight of his testimony were questions within the province of the jury only. It was for them also to consider the financial conditions of the actual parties, the circumstances of the transaction between them, and the events preceding and following it, either to corroborate or to contradict the plaintiff's assertions and claims. We agree with the conclusion of the trial court, stated in its memorandum denying this motion, that-

" A review of the evidence discloses no such situation as to indicate any improper motive, attitude or conduct on the part of the jury, or that their conclusion was not legitimately warranted by evidence before them which they might properly have believed."

It was well within the reasonable exercise of the court's judicial discretion to permit the amendment of the complaint by adding the second count. The complaint itself set out a cause of action which arose out of dealings between the plaintiff and defendant which took place at a time when the plaintiff was weak in mind and incapable of attending to his business affairs, and in which the defendant obtained from him by undue influence a sum of money which she converted to her own use. The plaintiff's real object in bringing this suit was to recover this money. That was therefore his ground or cause of action. Johnston v. Sikes, 56 Conn. 589, 594; Fisk's Appeal, 81 Conn. 433, 441, 71 A. 559. He set up his claim as one in tort. The amendment, offered after he had completed his testimony concerning these dealings, on its face referred to the same dealings and to the same sum of money. It appeared then, and is not disputed that these dealings between these parties were the only dealings which resulted in the plaintiff's giving this amount of money to the defendant. The effect of the amendment was merely to state the plaintiff's claim in another form. He plainly expected to recover under only one of the counts. Under our practice he had the right to set forth in one count his version of his dealings with his sister and the circumstances and conditions in which they were had, and, after he had presented his evidence, to submit to the court and jury the question whether, on the facts proved, he was entitled to recover from the defendant the sum of money he had given to her on the ground that she unduly influenced him to part with it, or to recover this sum of money from her as a loan; that is, whether, on the facts proved, he could recover for the defendant's fraud or for her breach of a contract thus effected. Knapp v. Walker, 73 Conn. 459, 47 A. 655; Huntington's Appeal, 73 Conn. 582, 48 A. 766; Kling v. Torello, 87 Conn. 301, 87 A. 987, 46 L.R.A. (N. S.) 930. The dealings of which this money was the subject were the transactions out of which the plaintiff's claims arose, and these were the claims upon which his causes of action were brought to recover. Therefore it mattered not that one was a claim in contract and the other in tort. Our statutes regulating pleading permit several causes of action to be united in the same complaint; but where they are so united " they must all be brought to recover, either *** (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action." General Statutes, § 5636. Hence the proposed second count might have been originally inserted in the complaint, and the allowance of the amendment setting it forth, at the time when it was offered, might be granted by the discretion of the court under our liberally construed statutes and rules of pleading. General Statutes, § 5664.

No new matter was injected by the amendment; only another construction to be put upon facts already in evidence was suggested. An opportunity to answer the new pleading and to further examine the plaintiff as a witness was granted to the defendant, and was used as fully as he desired. He asked no more. Nothing is disclosed in the record to suggest an abuse of judicial discretion. Therefore the action of the court will not be reviewed on appeal. Lawton v. Herrick, 83 Conn. 417, 76 A. 986; Verdi v. Donahue, 91 Conn. 448, 453, 99 A. 1041.

Moreover, by the death of the defendant while this suit was pending, the cause or right of action was not lost nor destroyed; it survived against the administrator. General Statutes, § 6177.

" The cause of an action is the existence of a state of facts which entitles the plaintiff to the relief demanded. Any state of facts which entitles the plaintiff to that relief shows a cause of action." Wildman v. Wildman, 70 Conn. 700, 710, 41 A. 1.

In this case the original cause of action was founded in tort. It set out a " right belonging to the plaintiff and some wrongful act or omission done by the defendant, by which that right had been violated." Id., 70 Conn. 708, 41 A. 2. The right of the plaintiff was his right to a specified sum of money; the wrongful act of the defendant was her obtaining of this money by undue influence, and her conversion of this money to her own use.

We have said:

" In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrongdoer the duty of returning that property to the owner; this duty may be treated as a quasi contract, and the neglect to perform it may become a breach of such contract; in such case the damage resulting from the tort is substantially the value of the property, and the damage resulting from the breach of contract is substantially measured in the same way; and so for determining the question of survival, the substantial cause of action may properly be treated as founded in contract, although the form of action might sound in tort. *** A safe test, therefore, for

...