Hammond Ex Rel. Hammond v. Bullard

Denny, E.J. The appellants assign as error the failure of the court below to sustain their motion for judgment as of nonsuit made at the close of plaintiff’s evidence and renewed at the close of all the evidence. The defendants contend the court erred in denying their motion for judgment as of nonsuit, on the ground that the plaintiff seeks to do something indirectly that she could not do directly, citing Davis v. Davis, 223 N.C. 36, 25 S.E. 2d 181. This position is untenable for two reasons. The first one is that in the instant case the action was brought by a next friend, which was permissible under the law. Lamb v. Perry, 169 N.C. 436, 86 S.E. 179; Carroll v. Montgomery, 128 N.C. 278, 38 S.E. 874; Hicks v. Beam, 112 N.C. 642, 17 S.E. 490. The second reason is that in Davis v. Davis, supra, the jury found there was no fraud or undue influence involved in the procurement of the contested conveyance. Here, the jury found that Elva P. Hammond on 5 September 1962 was mentally incompetent to execute the deed, and also found that the defendants Bullard obtained the deed in question by fraud and undue influence. Davis v. Davis, supra, is not controlling on the facts in this case. The defendants admit that if their contention with respect to the manner in which this action was brought is not sustained, the plaintiff’s evidence, when considered in the light most favorable to her, *575 is sufficient to carry the case to the jury on the issue of mental capacity. This assignment of error is overruled. The appellants’ assignment of error No. 3 is based on the alleged failure of the witnesses to state what opportunity they had had to observe Elva P. Hammond on or prior to 5 September 1962, before stating whether or not the witness had an opinion satisfactory to himself or herself as to whether or not Elva P. Hammond on 5 September 1962 had sufficient mental capacity to understand what she was doing and the nature and consequences of her act in making a deed. The three witnesses who testified they did have an opinion satisfactory to themselves as to whether or not Elva P. Hammond on 5 September 1962 did have the mental capacity to understand what, she was doing and the nature and consequences of her act in making a deed, were as follows: Irvin Ray Hammond, who had lived with his mother all his life except for two months; E. K. Bullard, 53 years of age and brother of the defendant G. T. Bullard, who testified that he had known Mrs. Elva P. Hammond all his life, that he had helped the Hammonds for many years on their farm since 1950, that he had tended the farm one year since 1950, and had seen Mrs. Elva P. Hammond once or twice a week since 1950, and sometimes more often; and Mrs. Hattie Strickland, a niece of Mrs. Hammond, who testified that she had known her aunt for 29 years and that she had been nursing her for the past five months. Each of these witnesses testified that in his or her opinion Elva P. Hammond did not have on September 5, 1962 the mental capacity to understand what she was doing and the nature and consequences of her act in making a deed. In our opinion there is no merit to these exceptions, and this assignment of error is also overruled. Defendants’ assignment of error No. 4 is directed to the following portion of the charge to the jury: “The plaintiff has offered evidence also tending to show the plaintiff did not have sufficient mental capacity to execute the deed in question on 5 September 1962.” This instruction is technically erroneous. However, the court used the same language in summarizing the defendants’ evidence, to wit: “The defendant has offered evidence tending to show that the plaintiff did have sufficient mental capacity to sign the deed in question on 5 September 1962 through the testimony of several witnesses as you will recall.” The court, however, in giving final instructions on issue No. 1 did so as follows: “So, the Court instructs you, members of the jury, that if you find from the evidence and by its greater weight that the plaintiff, Elva P. Hammond, on 5 September 1962 lacked sufficient mental capacity to understand the nature, scope and effect of *576 signing the deed in question, then you would answer Issue No. 1, No. If you fail to so find, you will answer Issue No. 1, Yes.” In our opinion the jury was not misled by the instruction about which the defendants complain. In re Efird’s Will, 195 N.C. 76, 141 S.E. 460. In the last cited case this Court held that where both caveator and propounders questioned their witnesses on the conjunctive proposition, including all the elements as to testamentary capacity to make a will, the jury could not have been misled; that under the facts and circumstances disclosed by the record the error was technical and harmless. In our opinion the remaining assignments of error present no prejudicial error that would warrant our disturbing the verdict and judgment entered below. No error. Moore, J., not sitting.