McDermott v. Lankenau

Gilbert, J. 1. Movant complains that the court erred in-charging the jury as follows: “You are not charged with the duty of determining whether or not she made the will freely or voluntarily, or that any influence was brought to bear on her.” The criticism of the charge is that under the pleadings the court should have submitted to the jury the question whether or not the will was freely and voluntarily made, or whether the will was the result of influence brought to bear on the testatrix, due to her infirmities of age and illness; also that it ignored the testimony tending to show that the will was made in response to urgent suggestion from other persons. Held: The charge was not error. The issue was properly restricted to whether or not there was a contract between the parties, as alleged in the petition, and a breach thereof. 2. Movant complains that the court erred in stating the contentions of the petitioner, in that the court referred to the contract alleged to have existed between the parties as having been entered into on or about the year 1925, and that the pleadings and the evidence required a charge that in the year 1927 the contract was renewed and confirmed, and that the statement of plaintiff's contentions was otherwise not full and complete. Held: This assign — 588 — ment of error does not require a reversal. If petitioner desired a more detailed statement, a written request should have been duly presented. 3. Movant complains that the court erred in charging as follows: “The contract and the terms thereof must be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt.” The criticism of the charge is as follows: (a) That the principle stated is not applicable in a civil case; (b) that it is inapplicable in a suit for specific performance not involving a contract to devise land; (c) that in a suit merely involving specific performance of an oral contract not involving land, the rule stated is inapplicable ; that the rule in such cases is that of a preponderance of the evidence; (d) because the instructions• are violative of art. 1, section 4, par. 1, of the constitution of Georgia (Civil Code of 1910, § 6391), which provides that laws of a general nature shall have uniform operation throughout the State, and is also violative of the provisions of “subsection 5 of article 8 of the constitution of the United States, which provides that no person shall be deprived of property without due process of law,” because the law of reasonable doubt is applicable only to criminal cases, whereas in civil eases the rule of preponderance of evidence is applicable; that the Code of Georgia, §§ 5730-32, having defined the rule of law applicable in all civil cases, can not be limited by an instruction, in the case of. specific performance or breach of contract, by the rule applicable in criminal eases only, as such application violates the constitution as to the uniform operation of the law. Held: (a,b) The principle stated in this excerpt, and also complained of in substance in two other grounds of the motion, is in accord with previous decisions of this court, and is held not to be erroneous. Scott v. Williams, 167 Ga. 386 (145 S. E. 651), and cit.; Suber v. Black, 168 Ga. 439 (148 S. E. 81). (c) The contract purports to include within its terms the devise of land, and the suit is for specific performance. (d) Such instruction is not violative of the State or the Federal constitution, for any reason assigned. The application of the rule is proper in all cases of like kind, wherever occurring within the State of Georgia. There is no denial of due process, because every suitor is afforded an opportunity to be heard before there is an adjudication according to the established law of the land. — 589 — 4. On cross-examination, the following evidence ivas admitted: “Q. While Mrs. Grimm was there [at Mrs. Rubin’s], did you or Mrs. McDermott not try to borrow money from Mrs. Grimm? A. Positively, I never have asked Mrs. Grimm for a nickel in my life. Q. For the purpose of enabling Mr. McDermott to go into the gas-filling station business? A. No, sir, my father was to furnish that money.” The complaint is that after the introduction of the testimony plaintiff’s counsel sought to interrogate the witness as to the full details relative to the conversation about the “gasoline filling-station business.” The court, on objection, refused to permit the plaintiff to prove the details of such transaction and conversation. Held: No error is shown. 5. Movant complains that the court, on objection by the defendant, refused to allow the clerk of the court of ordinary to testify: “I have custody of the marriage licenses and have the marriage license record. I hold in my hand the record of the marriage of John EL Grimm to Mrs. Annie T. Foley, who later married Grimm, and is the deceased testator.” Held: The court did not err. The materiality of the evidence is not shown, and therefore no error is shown. 6. Movant complains that the court allowed the introduction in evidence of a letter dated Danville, Va., 3/17/’27, signed John F. McDermott, together with the envelope postmarked March 18, addressed Mr. T. R. Burkeman, Detective’s Office, Charleston Police Dept. Charleston, S. C., the contents of the letter being as follows: “Dear Burkeman. Thanks to your assistance and help, I have been able to recover my 7 Cluster ring Dinner ring, the cuff-links, also an electric percolator and a scarf that was sent to my wife from a cousin in Germany. ■ The old lady had them in her trunk in Denmark. She tried to stall, but when I told her I had been to Chas. — & a detective went to the jewelry shop with me, she admitted it. Please present my thanks to your chief & best wishes to yourself. Tours truly, John F. McDermott. Excuse pencil. If you see Mr. Marks, the old gentleman, tell him I got them. J. F. McD.” The objection to this evidence was that it was irrelevant and immaterial and not the basis of impeachment of Mrs. King or Mr. and Mrs. McDermott; and it was also contended that no sufficient proof had been submitted of the handwriting to prove that it had been written by J. F. McDermott, a witness in the ease. — 590 — Held: The admission of this evidence was erroneous. A witness can not be impeached by proof of a specific instance, as in this case, by an oral charge of larceny, where no indictment and record of the conviction is offered. Slappey v. Sumner, 136 Ga. 692 (71 S. E. 1075); McCray v. State, 134 Ga. 416, 425 (68 S. E. 62, 20 Ann. Cas. 101); Green v. State, 125 Ga. 742 (6) (54 S. E. 724). See also Killian v. Ga. R. Co., 97 Ga. 727 (25 S. E. 384). 7. Movant complains that the following evidence was admitted over objection: “I recall shortly after Mr. and Mrs. McDermott returned from their trip north, about August, 1927, that she told me about recovering some of their jewelry that had been stolen. Mrs. McDermott told me that she had this lady living with her, and spoke of her as ‘Ma/ and she said she always thought so much of her and trusted her, and she said after this lady left she missed her jewelry, and that when she and Mr. McDermott left here they stopped at this lady’s house in South Carolina, and that in going through a bureau drawer, or some drawer, maybe a dresser drawer, that she came across some of her jewelry, and that Mr. McDermott left her there while he went to Charleston, I think, to get a detec- ■ tive to go back and try to recover it, and that they got her jewelry back. This is what she told me.” The objection was upon the ground that it was irrelevant and immaterial, and not the basis of impeachment of the witness, Mrs. King, or Mr. and Mrs. Mc-Dermott. Held: The admission of this evidence was erroneous. Considered in connection with the ruling in the preceding note, the error was not cured by the admission, without objection, of other evidence substantially to the same effect by other witnesses.- 8. Movant complains that the court admitted the following evidence: “Mr. John E. McDermott told me that he went to Denmark, S. C., and discovered the scarf-pin made out of diamonds that had been stolen from his cuff-links. He did not only tell that to me, but to my father also, the night he came from Denmark, when he came back to Savannah. He said he had one of the cufflinks that had been made into a scarf-pin with him. He said he was going back to Charleston from here. He later told us about the result of his trip to Charleston. He kept us up until one o’clock one night talking about it, and he said he got back the cuff-links, and he put them in the safe with my father for safekeeping, and he said he recovered them from Mrs. King.” The ground of objec — 591 — tion was that the evidence was irrelevant and immaterial, and “not the basis of impeachment of the witness, Mrs. King, or Mr. or Mrs. McDermott.” The admission of this testimony was error, for the same reason stated in the preceding headnote. 9. Error is assigned because the court, over objection of counsel for plaintiff, refused to permit the plaintiff to prove, by H. Mercer Jordan, the testimony given in a former trial by T. E. Walsh, a witness for the defendant, as follows: “Mr. T. E. Walsh, a witness on the former trial of the case, and of counsel for the defendant, testified that the will under consideration was written by him in his handwriting, in long-hand, at the St. Joseph’s Hospital, he having been sent for by Mr. Cornelius McCarthy; that it is usual and customary, frequently, to get memoranda and thereafter draft a will in the office, but that on this occasion he had called to see Mrs. G-rimm at the hospital. He left her a pencil and memorandum sheet of paper, and that she then made a pencil draft of what she wanted put in the will. That he called subsequently, and that Mrs. Grimm had a pencil memorandum made of what she-intended her will to be. That she wanted to leave some of her money to the St. Marys Orphan Home. She had everything down except the $5000.00 left to the Bishop, and she said she thought she would leave that to the Orphan’s Home, and asked my opinion about that. I said: “Well, I am vice-president of St. Mary’s Home, and I happen to know that under Dr. Herron’s will it only recently received $100,000, and that they don’t need money so badly, but I do know that the Bishop is short of money for educational purposes, and if you want me to suggest I suggest you -leave that $5000 to him.’” Held: Under the pleadings and the evidence this testimony was not admissible, because the only question to be determined was whether there was such a contract as alleged by the petitioner, and a breach thereof. 10. Other grounds of the motion for a new trial, not specifically dealt with, are either controlled by the rulings stated in the preceding headnotes, or are of such character as do not require special mention and do not show error. 11. No ruling is made upon the sufficiency of the evidence, because the case is remanded for another hearing. The court erred in refusing to grant a new trial. 12-. The request to review and overrule the cases of Printup v. — 592 — Mitchell, 17 Ga. 558 (63 Am. D. 258); Redman v. Mayes, 129 Ga. 435 (59 S. E. 212), Gordon v. Spellman, 145 Ga. 682 (89 S. E. 749, Ann. Cas. 1918A, 852), Gordon v. Spellman, 148 Ga. 394 (96 S. E. 1006), Lloyd v. Redford, 148 Ga. 575 (97 S. E. 521), Scott v. Williams, 167 Ga. 386 (supra), Chamblee v. Wayman, 167 Ga. 821 (146 S. E. 851), and Suber v. Black, 168 Ga. 439 (supra), is denied. Judgment reversed. All the Justices concur, except Atkinson, J., disqualified, and