Ware v. Martin

• Decision Date: 16 April 1952
• Docket Number: No. 17779,17779
• Citation: 209 Ga. 29,70 S.E.2d 446
• Parties: WARE v. MARTIN.
• Court: Georgia Supreme Court

Page 446

70 S.E.2d 446

209 Ga. 29

WARE v. MARTIN.

No. 17779.

Supreme Court of Georgia.

April 16, 1952.

Syllabus by the Court.

1. The court did not err in overruling the general demurrer to the petition as amended.

2. The evidence was wholly insufficient to prove the alleged contract to adopt.

3. The contention that the trial judge expressed an opinion that the alleged contract had been proved is without merit. The contention that a quoted excerpt from

the charge was misleading to the jury is meritorious.

4. The alleged error in the ruling of the court as to the qualification of certain jurors requires no ruling, since the error alleged should not recur upon another trial.

In Ware v. Martin, 207 Ga. 512, 63 S.E.2d 335, it was held that the petition did not set forth an equitable cause of action based upon a contract to adopt the plaintiff. She amended her petition before the judgment of this court was made the judgment of the trial court; and in Ware v. Martin, 208 Ga. 330, 332, 66 S.E.2d 737, it was held that the petition as amended stated 'an equitable cause of action on the basis of the plaintiff being the child of the deceased parties by virtual adoption, and a breach of the agreement to adopt.'

Subsequently to the ruling of this court in Ware v. Martin, 208 Ga. 330, 66 S.E.2d 737, the plaintiff again amended her petition by striking any reference to Mrs. C. E. Keeter as a party to the alleged contract to adopt, and by adding the words, 'And the said C. E. Keeter contracted to adopt the plaintiff as his own child.' The defendant renewed his general demurrer to the petition as finally amended, and it was overruled.

Upon the trial of the cause twelve witnesses testified for the plaintiff. All of this testimony was in substance the same as that herein set out. Alex Glidell testified in part as follows: 'It knew Mr. Charles E. Keeter during his lifetime * * * I have worked for him * * * I remember a conversation I had with Mr. Keeter in reference to his wife and children * * * He said to me * * * 'I want you to look for another job, I am fixing to quit work, for I have enough for all of us, me and my wife and two daughters' * * * He just said the parents of Mrs. Martin [the plaintiff] gave him the kid on the mother's deathbed, and he was going to keep it like it was.'

T. L. Mimms testified in part as follows: On one occasion when the witness was talking to C. E. Keeter, Mr. Keeter said that 'while he didn't have any boys he did have two girls, and said he adopted one of the girls, * * * said he thought as much of one of his daughters as he did of the other and treated them both the same, that when he gave one anything, he gave the other * * * He told me where he got this child from, that she was Mr. John Keeter's daughter, and said the child was given to him when she was about two years old * * * He said that his wife and children were all that he was living for, and he was saving his property for them.'

The trial resulted in a verdict for the plaintiff. The defendant's motion for new trial was denied, and he excepts to that judgment and to the judgment overruling his demurrers to the petition as finally amended. The parties will be referred to in the opinion as they appeared in the court below.

Clement E. Sutton and Colley & Orr, Washington, L. C. Groves, Lincolnton, for plaintiff in error.

Earle Norman, Washington, for defendant in error.

HEAD, Justice.

1. This court having ruled in Ware v. Martin, 208 Ga. 330, 66 S.E.2d 737, 740, that the petition as then amended stated 'an equitable cause of action on the basis of the plaintiff being the child of the deceased parties by virtual adoption, and a breach of the agreement to adopt', it was not error to overrule the demurrer to the petition as further amended, since the second amendment did not materially change the allegations of the petition as to the relief sought against the administrator of C. E. Keeter.

2. Where specific performance of an alleged parol contract is sought, it is the general rule that proof of the contract must 'be made out so clearly, strongly and satisfactorily, as to leave no reasonable doubt as to the agreement.' Printup v. Mitchell, 17 Ga. 558, 559; Shropshire v. Brown, 45 Ga. 175; Beall v. Clark, 71 Ga. 818; Smiley v. Smiley, 144 Ga. 546, 87 S.E. 668; Bird v. Trapnell, 149 Ga. 767, 102 S.E. 131; Pattillo v. Mangum, 176 Ga. 51, 166 S.E. 641; Salmon v. McCrary, 197 Ga. 281, 29 S.E.2d 58; Haynes v. Ellis, 199 Ga. 702, 35 S.E.2d 151; Hulgan v. Gledhill, 207 Ga. 349, 61 S.E.2d 473.

A petition which alleges a parol contract to adopt, and which seeks to have the child declared to be an heir of the deceased, or which seeks a decree declaring the child to be the child of the alleged adopter, is essentially an action for specific performance, Pierce v. Harrison, 199 Ga. 197, 33 S.E.2d 680, and under the decisions of this court the evidence required to prove a parol contract to adopt must be 'clear, strong, and satisfactory.'

In Pair v. Pair, 147 Ga. 754, 757, 95 S.E. 295, 296, it has held that a parol contract to adopt 'will be specifically enforced in equity if the contract be definite and specific, based upon a sufficient legal consideration, and the proof of it be strong, clear, and satisfactory.'

In Ray v. Kinchen, 166 Ga. 788, 144 S.E. 317, 318, it was held: 'The right of plaintiff to the relief sought is based upon her claim of 'virtual' adoption. An oral contract of adoption must be definite and specific, based upon a sufficient legal consideration, and the proof of such contract must be clear, strong and satisfactory.' See also Lansdell v. Lansdell, 144 Ga. 571, 87 S.E. 782; Rahn v. Hamilton, 144 Ga. 644, 87 S.E. 1061; Ansley v. Ansley, 154 Ga. 357, 114 S.E. 182; Crum v. Fendig, 157 Ga. 528, 121 S.E. 825; Chamblee v. Wayman, 167 Ga. 821, 146 S.E. 851; Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111, 11 S.E.2d 766; Jones v. O'Neal, 194 Ga. 49, 20 S.E.2d 585.

Counsel for the plaintiff cites and relies upon an extract from the third headnote in Chamblee v. Wayman, supra [167 Ga. 821, 146 S.E. 852], as follows, 'it is sufficient to establish the contract for it to be shown that the father of the children completely and absolutely surrendered them to the deceased according to the contract.' Counsel also quotes from 2 C.J.S., Adoption of Children, § 26, p. 397 (which cites Chamblee v. Wayman as authority), as follows: 'A complete and absolute surrender of the child to the quasi-adoptive parents may be sufficient to show the contract of adoption'.

There is no decision by this court which holds that evidence of the surrender of a child by its parents is sufficient to prove a contract to adopt. Counsel for the plaintiff has construed the word 'establish' in the above quotation from Chamblee v. Wayman, supra, to mean 'prove.' This construction is not supported by the opinion of the court or the record in that case. The word 'establish' as used in the third headnote relates to performance of the contract. This is true for the reason that in the headnote, and in the corresponding division of the opinion, the writer was dealing with charges and alleged failures to charge by the trial judge on performance of the contract. The trial judge denied the request to charge that the plaintiff would have to show by a preponderance of the testimony that there had been full performance of the contract both on the part of the person contracting for the children and by the children. It would require a very strained construction, and one wholly unauthorized by the opinion, to hold that the writer of the opinion digressed from a consideration of the attacks made on the charges of the court with reference to performance to revert to a ruling upon a question already settled by the first division of the opinion.

In Chamblee v. Wayman, supra, there was a contract proved by uncontradicted testimony, and in Savannah Bank & Trust Co. v. Wolff, supra (also cited by counsel for the plaintiff), there was positive proof of the contract to adopt.

In the present case there is no evidence of a contract between Mr. and Mrs. John Keeter and C. E. Keeter. The plaintiff relies upon statements by C. E. Keeter which do not show a contract. Statements by the deceased showing affection for the plaintiff, and a fatherly attitude toward the plaintiff, accompanied by statements by the deceased that the plaintiff was his adopted daughter, considered in their entirety, are wholly insufficient to show that Mr. and Mrs. John Keeter surrendered the plaintiff to C. E. Keeter pursuant to an oral contract between the parties that the parents would relinquish all parental rights, and that the defendant would adopt the plaintiff in the manner provided by law. The verdict of the jury is without evidence to support it, and the trial court erred in overruling the general grounds of the motion for new trial.

3. Special grounds 1 and 2 assign as error an excerpt from the charge of the court. It was contended that the charge was misleading and confusing to the jury, in that they were led to believe that the contract of adoption had been proved if the evidence showed that the father and mother of the plaintiff surrendered her to the deceased; that the words, 'according to the contract,' and 'in accordance with the contract,' amounted to an expression of opinion by the court that a contract was made as contended by the plaintiff; and that, for this reason, the charge was harmful and prejudicial to the defendant.

Prior to the charge complained of, the trial judge charged the jury that the burden of proof was on the plaintiff to establish her contentions by 'strong, clear, and satisfactory evidence, and beyond a reasonable doubt.' This charge stated the degree of proof required in all cases where the cause of action is based on a claim of 'virtual' adoption pursuant to an oral contract to adopt. See Ray v. Kinchen, supra; Ansley v. Ansley, supra.

The charge assigned as...