Lowe v. Hart

Wood, J., (after stating the facts). 1. As a “nunc pro tunc order” is intended to state what the court did, and not what it should have done, we must take the finding of the court as correct, that what was done and intended to be done by the orders “was to make the administrator a party.” Tucker v. Hawkins, 72 Ark. 21; Gregory v. Bartlett, 55 Ark. 30; Cox v. Gress, 51 Ark. 224. The court’s recollection and construction of its own order must be accepted, in the absence of any oral evidence or anything in the record itself to the contrary. The minutes on the judge’s docket do not show that any different order was made than that found by the court to have been made at the time -of the entry on the minutes of what was done on the judge’s docket. These minutes do not warrant us in reaching a conclusion contrary to the finding of the court. It was within the sound discretion of the court under the evidence adduced to refuse to make the order nunc pro tunc, as requested by appellant. See 17 Enc. Pleading & Practice, 921, 926; Stockdale v. Johnson, 14 Ia. 178. But, even if the rulings of the court were erroneous, the error is not prejudicial. . The bank was a mere depository of the fund, and held the same in trust for the owner, as the jury must have known. The interest that a cashier and clerk would have in a matter of that kind would be so slight that no sensible juror would distrust their evidence on that account or give it less weight. 2. It follows that there was no error in the rulings of the court in refusing appellant’s prayer designated “statement” and his prayer number 6, nor in the giving of appellee’s prayer number 1. 3. There was no error in refusing appellant’s prayer number 8. The court in several instructions at appellant’s request fully covered the proposition of law contained in this prayer, and the jury were specifically instructed on this point. See Maxey v. State, 66 Ark. 523. 4. Prayer number 2, given at the request of appellee, was a correct declaration of law as to the essential elements of a gift inter vivos. The appellee claimed the money on deposit as a “gift,” and under the allegations of her complaint she could prove that it was either a gift inter vivos or causa mortis. In another instruction the court correctly told the jury what was necessary to constitute a gift causa mortis. These instructions, taken together, accurately declared the law as to the essential elements of a gift either inter vivos or causa mortis, and gave the jury a correct guide to determine from the evidence whether .there was a gift of either kind. It often occurs that the law'applicable to every phase of a case can not be presented in a single instruction. “If the various instructions given in a case separately present every phase of the law as a harmonious whole, there is no error in a particular instruction failing to carry qualifications which are explained in others.” St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61; Southern Anthracite Coal Co. v. Bowen, ante p. 140, and cases there cited. The separate and independent propositions of law defining the two kinds of gifts were not erroneous, and were not in conflict. The two together declared the law applicable to the facts in evidence. Thomas v. State, 74 Ark. 431; Lackey v. State, 67 Ark. 416. 5. It follows also that the court did not err in refusing to compel appellee to elect as to the character of the gift. The sole issue was whether or not there was a gift. If appellee established the fact of a gift, either inter vivas or ccmsa mortis, her cause of action was complete, because in either case, if proved, she was the owner of the money and entitled to recover. See Newton v. Snyder, 44 Ark. 42; Nolen v. Harden, 43 Ark. 307; Ammon v. Martin, 59 Ark. 191; Hatcher v. Buford, 60 Ark. 169; Ragan v. Hill, 72 Ark. 307. There was but one cause of action stated in the complaint. 6. Instructions three and five given át appellee’s request are not instructions on the weight of the evidence. They are not so framed as to give undue prominence to any particular fact. The jury are told that they may consider “all the facts and circumstances surrounding the transaction;” and while mention is made of particular facts which the evidence tends to prove,' no one of these is isolated and stressed so as to give it special emphasis or importance over any other fact proper for the jury to consider. Similar instructions have been approved in former opinions of this court. Campbell v. Carnahan, 13 S. W. 1098. It is the duty of the court “to give specific instructions correctly and clearly applying the law to the facts of the case.” St. Louis & S. F. Rd. Co. v. Crabtree, 69. Ark. 134; Taylor v. McClintock, 87 Ark. 243, 280-281, and cases cited. Such instructions do not violate the rule against “singling out certain parts of the evidence.” St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 227. 7. This court, as early as Yarborough v. Arnold, 20 Ark. 592, 598, announced the rule that in civil cases it is the duty of the jury “to decide in favor of the party in whose favor the weight of the evidence preponderates, and according to the reasonable probability of truth.” It is only in criminal cases that the jury must be satisfied beyond a reasonable doubt. The rule has never been departed from in this State, and is the prevailing doctrine. See cases cited in 11 A. & E. Ency. of Law, (2 ed.) 491, and cases cited. There is no exception to the rule in cases of gifts “ccmsa mortis,” and therefore the court did not err in telling the jury in instruction nine that the burden was on the appellee to establish a valid gift of the certificate .by a preponderance of the evidence. This rule as to the burden of proof does not in any manner contravene the doctrine that the evidence to establish a donatio causa mortis should be “clear and convincing, strong and satisfactory,” as is properly held in many jurisdictions. Lewis v. Merritt, 21 N. E. (N. Y.) 141, and numerous cases cited in appellant’s brief. The latter doctrine relates, not to the burden of proof or the preponderance of the evidence, but to its quality or probative force. Instruction number nine was an instruction on the burden of proof and declared the law on that subject applicable.to the case at bar. The instructions upon the whole were comprehensive and clear declarations, submitting accurately every phase of the evidence to the jury. If it were not so, the cause would have to be reversed, for the most difficult question with us has been to determine whether or not there was any evidence to sustain the verdict. 8. Giving the evidence its strongest probative force in favor of appellee, a majority of the court have reached the conclusion that there is sufficient evidence to support the verdict. Although, if sitting as jurors, we might have rendered a different verdict, yet we feel that, under well established rules of this court, we could not disturb it without invading the province of the jury. St. Louis, I. M. & S. Ry. Co. v. Petty, 63 Ark. 94; Wallis v. St. Louis, I. M. & S. Ry. Co., 77 Ark. 556; Rogers v. Choctaw, O. & G. Rd. Co., 76 Ark. 520; Priest v. Hodges, 90 Ark. 131; Scott v. Moore, 89 Ark. 321; McClintock v. Frohlich, 75 Ark. 111; Davis v. Trimble, 76 Ark. 115; St. Louis S. W. Ry. Co. v. Byrne, 73 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Osborne, 67 Ark. 399. The evidence is set forth at length in the statement of facts. The kindly offices of the Harts to Mr. Carroll during the time he had formerly lived with them caused him to regard them as homefolks and their house as his home. When disease had prayed upon his frame until it became necessary for him to go to an asylum to be treated, and to seek the assistance of others, he said he wanted “to go home” to “John Hart’s.” His .friend, believing that the hospital would be a better.place for him to be treated, finally prevailed upon him to go there. But he was never satisfied there, and when the attending physician “intimated to him that he was not going to get well, he seemed to want to die at the home of his friend Hart.” Before leaving the hospital, he was told that he might die, and was asked what he was going to do with his stuff (his .money), and his reply was, “John Hart’s folks will know what to do with my stuff.” In a little while after he was carried to Hart’s home, he took’the certificate from his pocket, and in the presence of a witness handed it to Mrs. Hart, and said, “Here is a check for my money.” On another occasion in the presence of witnesses he asked Mrs. Hart to get the certificate and let another look over it to see if it was O. K., and when this was done, and the certificate was handed to Carroll, he said he had given the certificate to Mrs. Hart, and handed it back to her. Now, if Carroll intended at the time he handed the certificate to Mrs. Hart to immediately pass to her the.title and the right to draw his money on deposit, as the above evidence tends to show, and if she accepted it as her own, then the intention on his part to give, and on her part to accept, accompanied by delivery of the certificate for the purpose indicated, would constitute an absolute gift inter vivos. Ammon v. Martin, 59 Ark. 191. In such case the gift would still be inter vivos, although the donor was on his deathbed, and knew that he was going to die. For, although a man may be upon his deathbed, he may still make a gift inter vivos. Hatcher v. Buford, 60 Ark. 109. There was some evidence to warrant the jury in finding such a gift. If, instead of giving Mrs. Hart the certificate, he had in fact given her a check for the money, the evidence of an absolute gift, under the circumstances, would have been conclusive. Well, the fact that Carroll spoke of the certificate as “a check” was some evidence that he intended to treat it as a check, and meant for it to have the same effect as a check in transferring the immediate title of the money on deposit from himself to . appellee.- He called the certificate “a check,” and the jury might have concluded that he gave it this designation because he intended that appellee might use it as she would a check given her under the same circumstances. When approached in regard to making a will, Mr. Carroll said “he had thought at first he would make a will, but afterwards changed his mind; that he had already given the certificate to Mrs. Hart; that if he willed what he had away he would die a pauper.” Then, after having the certificate examined and pronounced O. K. by Stout, he, Carroll, -again handed the certificate to Mrs. Hart, saying to those present at the time, “I have given it to her, and she would know what to do with it in a few days.” The above testimony, taken in connection with the other evidence tending to prove that Carroll then realised that he was soon going to die, warranted the jury in finding that there was a gift of the money “to appellee causa mortis.” In other words, the jury might have found from the above testimony that Carroll, being then on his deathbed and expecting soon to die, gave the certificate of deposit to appellee, which was a symbolic delivery of the money itself, and that appellee accepted the gift; that the intention of Carroll at the time was that no title or property in the money should pass to appellee except in the event of his death. These facts would constitute a gift causa mortis. The essential elements and characteristics of such gifts are fully set forth in Hatcher v. Buford, 60 Ark. 169. It is unnecessary to repeat here what we said there. The doctrine of that case as to gifts causa mortis rules this upon the facts as the jury might have found them. There is no reversible error in the record, and the julgment is therefore affirmed.