Tallmadge v. Robinson

• Decision Date: 10 December 1952
• Docket Number: No. 32957,32957
• Parties: , 49 O.O. 206 TALLMADGE v. ROBINSON.
• Court: Ohio Supreme Court

Page 333

158 Ohio St. 333

109 N.E.2d 496, 49 O.O. 206

TALLMADGE v. ROBINSON.

No. 32957.

Supreme Court of Ohio.

Dec. 10, 1952.

Syllabus by the Court.

1. Threats to give testimony, which testimony would be false, as to matters which would have the effect of bringing humiliation and disgrace upon a person or his family in their community may constitute duress, if such threats overcome the will of such person, remove his capacity to act for himself and cause him to perform an act he is not legally bound to perform; and it is not necessary that such threats be made directly to the person to be influenced, if they are made to a third person with intent and purpose that such threats will be communicated to the person to be influenced thereby, and the threats are so communicated to and acted upon by the person intended to be so influenced.

2. In determining whether a course of conduct results in duress, the question is not what effect such conduct would have upon an ordinary man but rather the effect upon the particular person toward whom such conduct is directed, and in determining such effect the age, sex, health and mental condition of the person affected, the relationship of the parties and all the surrounding circumstances may be considered.

3. Where the plaintiff in a will contest case threatens to support the petition solely by her own testimony of incestual relations by the testator and by means of such threats subjects a daughter of the testator to duress and thus procures a note from her payable to the contester, in consideration of which the contester agrees to dismiss the will contest case and refrain from giving the threatened testimony, and where the evidence which the payee of the note threatened to introduce in the will contest case is false and untrue, the maker of the note is entitled to judgment in her favor when sued thereon by the payee, even though the will contest case had been dismissed as agreed.

This is an action on a promissory note for $10,000 executed by Martha Jane Cunningham Robinson in favor of her half sister, Luetta Cunningham Tallmadge.

Dr. Stephen A. Cunningham of Marietta, Ohio, had two children by his first marriage; one was Luetta, the payee of this note, who was born in 1891, the other was Robert P. Cunningham who was born in 1898. After the first wife procured a divorce from Dr. Cunningham in 1914, he remarried, and in 1920 the defendant herein, Martha Jane Cunningham, was born as the only issue of the second marriage. The daughter, Luetta, testified against her father in the divorce proceeding and thereafter until the time of his death she and her father were entirely alienated. Dr. Cunningham died August 14, 1939, at 72 years of age, leaving his estate in trust for the benefit of his second wife and after her death the corpus of the trust with the exception of $5 which was willed to the daughter, Luetta, was to be divided equally between the son, Robert, and the daughter, Martha Jane, hereinafter referred to as Jane. The estate was in excess of $100,000.

On February 20, 1940, Luetta instituted an action to contest her father's will, but she did not press the action for trial during the life of his widow--her stepmother. The widow died in April 1946. Shortly thereafter Robert, who lived in Chicage, came to the home of his half sister, Jane, in Marietta. They discussed settlement of the father's estate and called upon the attorney for the estate. Being advised that the estate could not be colsed until the will contest case was disposed of and that defense of that action would probably cost $2,500, Robert and Jane agreed between themselves that they would offer Luetta that sum if she would dismiss the action. Thereupon Robert visited Luetta for approximately two days at her home in Ashland county and conveyed the offer to her. She rejected it. She then informed Robert that she would testify as to improper conduct of her father with her as evidence of mental incapacity. Although Robert had no authority to bind Jane to pay Luetta more than half of $2,500, he was so disturbed by the story which she told him that he finally agreed to pay her $10,000 himself and to undertake to induce Jane to pay her $10,000. He returned to Jane's home and told her that Luetta threatened to say in court that her father had practiced incest with her for a period of six years before her marriage and during the first year of her marriage. The record shows that she was married in 1909, when 18 years of age. This threat greatly shocked Jane, she became very nervous and could not sleep and her existing poor condition of health became worse.

After conferences with Robert, lasting through most of two days during which he urged her to yield to Luetta's demand, Jane consented to sign a note for $10,000 to protect her father's name and avoid the disgrace which the family would suffer. At that time Jane was 26 years of age and had three children under three years of age, including a baby of four months. She cared for them herself, did most of the housework and was in poor health. Her husband who had been an army captain had just returned from service in India. Robert was then 48 years of age, had been educated at the United States Naval Academy at Annapolis and was experienced in business. Luetta was 55 years of age.

Robert returned to Chicago and immediately forwarded to Jane a note for $10,000 executed by himself, a similar note for Jane to sign, which is the note now in controversy, and a draft of instrument to be signed by Luetta agreeing to dismiss the will contest case. The notes were to become due 90 days after the closing of the father's estate. The notes were dated May 8, 1946. Luetta dismissed the will contest case on July 6, 1946. The father's estate was fully settled October 17, 1947. Robert paid his note but Jane refused to pay hers.

It appears unquestioned that neither Robert nor Jane consulted any attorney with respect to their efforts to settle the will contest case, the threats made by Luetta or the propriety of executing the notes. In fact, the record indicates that the attorney who was settling the estate did not learn of the execution of the notes until February 1947--approximately nine months after they were executed.

This action by Luetta against Jane upon her note was instituted May 7, 1948. The answer of the defendant sets forth the above facts and recites in great detail the conferences had between Robert and Jane after his return from his interview with Luetta and alleges that on account thereof the defendant 'was placed in such a state of mind through the representations of the infamy and the thoughts of the future of herself and her children and the disgrace and the memory of her father's life that she executed and delivered the paper writing as copied in the plaintiff's petition herein.'

The answer alleges that the representations were false and were known to be false by Luetta, that the same were initially conceived and planned by her and her brother, Robert, for the sole and only purpose to force the defendant through fear to sign said written paper, and that by reason thereof Luetta perpetrated a fraud on the defendant and caused her through compulsion and false representation to sign the paper. Defendant further alleges that the false representations so made were a result of a conspiracy betweeen Robert and Luetta.

Luetta died shortly before trial of this case, and her husband, as executor, was substituted as party plaintiff, but her deposition had been taken. In that deposition she denied that incestual relations had existed between herself and her father but asserted that on two occasions he had 'attempted' to have sexual relations with her; that one occasion was when she was 15 years of age and was acting as substitute office assistant; and that the other was during the first year of her marriage when she went to his room to call him to breakfast, at a time when her mother was in the kitchen and her husband was in the room next to her father's bedroom.

In the testimony of Robert given at the trial he neither affirmed nor denied that Luetta had told him that incest had been practiced for a number of years between her and her father, but he did state that Luetta had related to him the same two instances of 'attempted' incestual relations.

The trial court charged the jury in part as follows:

'The court says to you that if you find that the defendant has failed to prove by a preponderance of the evidence that the said Robert P. Cunningham made false and fraudulent representations to the defendant as part of a scheme or conspiracy on the part of the said Robert P. Cunningham and Luetta Cunningham Tallmadge, and if you find that the defendant has failed to prove by a preponderance of the evidence that the said representations were made with the intent to deceive, and that the defendant was deceived thereby, then you will return a verdict for the plaintiff for the amount asked in his petition and against the defendant.' (Emphasis supplied.)

The following three interrogatories were submitted to the jury at the request of the plaintiff, and the jury answered them as indicated:

'Interrogatory No. I. Do you find from the evidence that Robert P. Cunningham and Luetta Cunningham Tallmadge entered into a plan to induce Martha Jane Cunningham Robinson to sign the paper writing by having Robert P. Cunningham make false representations to her about the testimony which Luetta Cunningham Tallmadge would present at a trial in the contest of the will of Stephen A. Cunningham? Answer: No.

'Interrogatory No. II. Do you find from the evidence that the statements which Luetta Cunningham Tallmadge made to Robert P. Cunningham regarding the testimony which she would present at a trial of the contest of the will of Stephen A. Cunningham were false? Answer: Yes.

'Interrogatory No. III. Do you find from the evidence that the statements which Robert P. Cunningham made to ...