Knee v. McDowell

Opinion by Oblad y, J., This was an action of assumpsit brought to recover the [645] amount of a check given by I. D. Cole to the plaintiff, for the sum of $5,000. The plaintiff’s statement of claim set out the consideration of the check to be boarding, lodging, nursing, care and attention of I. D. Cole to October 26,1897, — the date of the check. During the trial an amendment of the statement was permitted so as to make the check cover both past and future services, until the death of Mr. Cole on December 6,1897. The plaintiff was twenty-seven years of age, and related by marriage to I. D. Cole, who was over eighty-four years old. Mr. Cole was married and had a wife living at his home a few miles distant from the residence of the plaintiff. During the last years of his life he became attached to the plaintiff and remained at her house about fourteen months of the last two years of his life, during which period he paid bills of her contracting amounting to about $200, and gave her a check for $500, on which she received the money. The evidence shows beyond all question that this old man had an unusual, if not an unnatural preference for the plaintiff as against his own wife and family $ and that his frequent visits to her home clearly' evidenced his preference for her society to that of any other person. A great deal of testimony was taken showing the relation existing between these parties. It was clearly established that she was attentive to his wants, and that she had rendered necessary and faithful services for practically two years, the compensation for which, under this verdict, is about $700, received previous to his death, and this verdict of about $1,300 ; consequently she was not wholly without reward. The check in suit was drawn by a young girl who testified that she wrote the check at the request of Mrs. Knee, while Mr. Cole was sleeping, but that she did not see it signed. The defense was want of consideration. The plaintiff presented twelve points, all of which were affirmed except the last, which is as follows: “ That the question of whether undue influence was or was not exercised, is not one that can be considered under this form of procedure.” This was refused, and in the charge to the jury the learned trial judge, after quoting from Darlington’s Estate, 147 Pa. 624, stated: “We leave it to you, therefore to say, under the instructions we have given you as to the law, whether the check was given under the conditions [646] claimed by the plaintiff for full consideration or for a partial consideration or whether it was given without any consideration. If you find that there was a full consideration for the chect; that it was the free, intelligent act of Mr. Cole, with an understanding of the nature of the transaction he was performing, then your verdict should be for the plaintiff for the full amount of the check with interest. If you find there was a failure of consideration for any portion of the check, whether large or small, you will deduct that amount, and for the balance you will find a verdict for the plaintiff with interest. If you find there was an entire failure of consideration for the check; that the plaintiff had been paid in full by Mr. Cole for all of the services rendered to him by her, outside of this check, then your verdict should be in favor of the defendant. In our opinion you ought not to find from the evidence, that the plaintiff is entitled to a verdict for the full amount of this check; that she did not give full consideration for it; that at the time it was made the decedent was not indebted to the plaintiff in the sum of $5,000. This is only our opinion from the evidence in the case. It is not binding upon you. It is your province to find the facts. You are not bound by the opinion of the court. You can disregard any opinion the court may express.” The check was presented for payment to the banker on whom it was drawn the day after its date, and payment was refused for the reason that Mr. Cole did not have sufficient money to his credit to meet it; it was then left with the banker until after his death a few months subsequént. The jury returned a verdict of $1,277.66, and the plaintiff brings this appeal. While there are twenty-eight assignments of error, all may be considered together. The estate left by Mr. Cole aggregated, in real and personal property, about $20,000. Under the testimony it is clearly established that this plaintiff held a relation of trust and confidence as friend, nurse, and caretaker, hence the receipt of the check, under the circumstances, requires a distinct, full and clear explanation. Under the rule of public policy the law shows a jealous care in dealing with a case of constructive fraud, and when a confidential adviser seeks to secure undue advantages, bargains, or gratuities, by availing himself of the good nature, liberality, credulity or necessity of the person who [647] reposes trust and confidence in the one who receives the advantage, the name given to the relation is not material. The law looks to substance and not at its shadow. .The effect that is produced upon the unduly or unfairly impelled person is the result that is prohibited. No trust shall be violated, no confidence misapplied, is the stern order of the law. In Worrall’s Appeal, 110 Pa. 349, the relation was between a sick man and his nurse ; in Darlington’s Estate, 147 Pa. 624, it was between an uncle and nephew who acted as attorney in fact; in Yeakel v. McAtee, 156 Pa. 600; Coleman’s Estate, 193 Pa. 605, and Carney v. Carney, 196 Pa. 34, it was between parent and child; in Simonds’ Estate, 201 Pa. 413, it was between father and an adopted daughter, and in O’Donnell v. Breck, 7 Pa. Superior Ct. 24, it was between attorney and client. The trial judge had pronounced views as to the effect to be given to the evidence in the case, which he expressed to the jury in unmistakable terms. He, howéver, as plainly states that the jurors were to dispose of the case unrestrained by the views of the court. In Lerbig v. Steiner, 94 Pa. 466, it is stated: “As a general rule, the judge should submit the facts without expressing his opinion thereon, and without making an argument in favor of either side, is safer, more satisfactory and better accords with the right of parties to have disputed facts decided by a jury. It is difficult for a judge to act as the advocate for one of the parties without giving just cause of offense. Exceptional cases arise where it is the duty of the judge to express his opinion of the facts and guide the minds of the jury to' a correct view of the evidence; and therefore it has been settled that when he does so, without misleading or controlling them in the disposition of the facts, there is no ground for reversal.” Ample warrant for the remarks of the court, taken as a whole, will be found in Bitner v. Bitner, 65 Pa. 347 ; Follmer v. McGinley, 146 Pa. 517; Fredericks v. Northern Central Railroad Company, 157 Pa. 103; Price v. Hamscher, 174 Pa. 73; and the same rule obtains even in criminal court. See Johnson v. Commonwealth, 115 Pa. 369; Commonwealth v. Orr, 138 Pa. 276; Commonwealth v. Buccieri, 153 Pa. 535; Commonwealth v. Van Horn, 188 Pa. 143. After a careful examination of the whole record, the assignments of error are all overruled, and the judgment is affirmed.