Howard v. Obie , 190 Ga. 394 ( 1940 )

Where the sole question before the jury on an issue of devisavit vel non is whether or not the testatrix had mental capacity sufficient to make a will, and where the propounders introduced the three subscribing witnesses and several others, all of whom gave testimony tending to show such mental capacity, and where the propounders swore, but did not call to the stand, one of three legatees with whom the testatrix had lived for approximately three years immediately before her death, it was error to charge the jury that where "a party to a cause who has evidence in his possession or control to refute testimony introduced by the other party, and does not introduce said evidence or testimony to refute said testimony of the said other party, there arises a presumption against said party who does not introduce said testimony in his possession or control."

No. 13284. MAY 17, 1940. To an application by Howard et al., the nominated executors, to probate the will of Pamela Louise Simmons, the granddaughter of the testatrix filed a caveat consisting of two grounds: first, undue influence on the part of Maggie Gaines; second, mental incapacity of the testatrix, a negro woman about eighty years of age, who left no husband or living child, and whose only descendant was the caveatrix. The purported will left three parcels of real estate and certain personal property to her granddaughter, one hundred dollars to Wallace Robinson, who had been her chauffeur, and the remainder of her property to Maggie Gaines; the will further providing that out of the residue should be paid her funeral expenses. For approximately three years before her death she had been living in the house of Maggie Gaines, having taken up her residence in the Gaines home immediately after the death of a bachelor son, not the father of the caveatrix, with whom she had previously resided. Maggie Gaines was not related to her, but the testatrix and the mother of Maggie had been intimate friends since Maggie's childhood. There was on the trial no contention that the instrument was defective in form, or that it was not properly executed. No evidence was offered to sustain that ground of the caveat setting up undue influence, the attack being directed solely to the ground that the testatrix was of unsound mind and mentally incapable of making a will. The three attesting witnesses testified, that in their opinion the testatrix was capable of making a will and was of sound mind; that the will was read to her, and the question was asked whether it was "like she wanted it," and that she replied in the affirmative. The scrivener testified to the same effect. The caveatrix swore herself and produced several witnesses, including the prior family doctor of the testatrix, all of whom testified that her mind had been weakened with age for a number of years, and that for several months she had no mind. The caveatrix produced at least one witness who testified that immediately after the execution of the will she came to the testatrix's bedside where she found her in a dying condition; that she never took medicine, drink, or food from that moment until she died, and never spoke a rational word and but few irrational words. The attending physician testified that a few hours before the time the will was executed the testatrix might have had testamentary capacity if you could keep her awake long enough for her to understand, but that he doubted keeping her awake long enough to understand a will. The only other witness introduced by the caveatrix who saw the testatrix on the night the will was signed was Lizzie Murray, who testified that she reached the home at about eleven o'clock, and swore: "In my opinion she was insane when I got there at eleven o'clock on Monday night." Dr. Thomas H. Slater testified that in his opinion the testatrix could not have had mental capacity "on June 5, 1939, to make a will disposing of ten pieces of property;" but on cross-examination he said that he had not talked to her or been in her home or had any contact with her for more than three years before her death.

The judge in his charge withdrew from the jury that ground of caveat based on undue influence. The jury found in favor of the caveatrix. The propounders filed a motion for new trial on the general grounds, to which was added by amendment a special ground, as follows: "The court erred, as movants contend, in charging the jury on the trial of the case as follows: ``I charge you that a party to a cause who has evidence in his possession or control to refute testimony introduced by the other party, and does not introduce said evidence or testimony to refute said testimony of the said other party, there arises a presumption against said party who does not introduce said testimony in his possession or control.' Movant contends that said charge was error, because the principle of law therein stated was not authorized by nor adapted to the evidence or the facts in the case on trial. Movants say in this connection, that, while one of the grounds of the caveat to the will was that it was not the will of Pamela Simmons because it was prepared by Maggie Gaines, one of the beneficiaries under the will, and that the said Maggie Gaines used undue influence upon the deceased, the caveatrix failed to introduce evidence to sustain this ground of the caveat, and the jury were specifically instructed by the court that the objections to the will on this ground were withdrawn by the court, and the jury were instructed that they were not to consider or regard such objections, as there was no evidence in the case to submit the matter of undue influence for decision by the jury. Said charge was requested by counsel for caveatrix, counsel contending to the court that said charge was applicable because movants failed to introduce Maggie Gaines as a witness, she being in court and sworn as a witness for movants. Movants contend that since the testimony on the question of whether or not the said Maggie Gaines had exercised undue influence upon the deceased in connection with the making of the will was insufficient to authorize the submission of the objections on this ground to the jury, it was not incumbent upon the propounders to call Maggie Gaines as a witness, and their failure to do so under these circumstances did not raise a presumption against them on the theory that they had in their possession or control evidence to refute testimony introduced by the other party.

"Movants further show in this connection that the propounders of the will introduced the testimony of the three persons who witnessed the execution of the will; all of whom testified to the fact that in their opinion the deceased was of sound mind at the time of its execution, and in addition thereto the propounders introduced several other witnesses who testified that in their opinion the deceased was of sound mind; and the caveatrix had introduced no testimony which was not refuted by the witnesses offered by the propounders. Movants therefore contend that the caveatrix introduced no evidence which was not rebutted by evidence introduced by the propounders. Movants contend that in view of the fact that counsel for the caveatrix contended to the court that the charge was applicable because of the failure of propounders to offer the said Maggie Gaines as a witness, the instruction given under which error is herein assigned was extremely harmful to movants, and was calculated to mislead the jury into believing the contention of counsel for the caveatrix that the propounders had purposely withheld from the jury evidence to refute testimony introduced by the caveatrix. Movants further show that the only issue for determination by the jury was whether or not the testatrix had the mental capacity to make a will at the time of its execution, and they were so instructed by the court in his charge. On this issue the propounders introduced several witnesses whose testimony they contended showed that the testatrix did have the necessary mental capacity, and the caveatrix introduced several witnesses whose testimony they contended showed that the testatrix did not have sufficient mental capacity. Movants show that there was no issue in the case on which they failed to offer evidence, and there was no evidence that the propounders of the will had any witness in their control who would testify to any fact on which the propounders had not introduced evidence, nor was there any evidence showing that the caveatrix had any witness in her control who would testify to any fact on which evidence had not been introduced.

"For the reasons above set forth movants contend that the charge here complained of was not authorized by the evidence, and that it was therefore error on the part of the court to give said instruction."

The judge refused a new trial, and the propounders excepted. 1. The principle of law, the charging of which is complained of, is sound; but the question is, was it applicable, and if not, was it reversible error to give it? It follows the language of the Code, § 38-119, which embodies a well-known rule of evidence (10 R. C. L. 884 et seq.), and which, as indicated by the parenthetic references at the conclusion of the text of the section, is but the codification of a rule announced by this court in Savannah, Florida Western Railway v. Gray, 77 Ga. 440, 443 (3 S.E. 158); First National Bankof Winston v. Atlanta Rubber Co., 77 Ga. 781, 785;Stevenson v. State, 83 Ga. 575-581 (10 S.E. 234). Its first appearance in any Code was in that of 1895, § 5163. In all the Codes the section is placed under the title, "Evidence." None of the three decisions from which the section was codified dealt with it as a portion of the court's charge to the jury. The last expression from this court on the subject was that the statement can be given in charge only in exceptional cases, and that the greatest caution must be exercised in its application. CottonStates Fertilizer Co. v. Childs, 179 Ga. 23, 31 (174 S.E. 708). That case was one wherein a suit was brought on a note against the husband, and to cancel a deed from the husband to the wife as having been made to defraud the plaintiff and other creditors. On the trial the defendants relied solely on the testimony of the husband. Since the jury could have found that the failure of the wife to testify was not sufficiently explained, this court held that in view of these and other circumstances the trial court erred in refusing a timely written request to give in charge the section of the Code above referred to. A similar charge was held proper in Nicol v. Crittenden, 55 Ga. 497, a claim case, which dealt with a fraudulent conveyance. The evidence there indicated that a bill of sale from the defendant in attachment to the claimant was material, was not produced on the trial, and no attempt was made to account for its nonproduction. Fountain v.Fuller E. Callaway Co., 144 Ga. 550 (87 S.E. 651), was a trover suit, the plaintiff basing its right to recover upon the ground that the goods had been procured from it by fraud of the defendant. A similar instruction was there given, and this court ruled that there was some evidence to authorize it. Moye v.Reddick, 20 Ga. App. 649 (93 S.E. 256), was a suit to recover damages from being run over by an automobile owned by the defendant, who was not at the time riding in it, while being driven by her chauffeur under her direction. Neither she nor the chauffeur testified, though both were present at the trial. A similar charge was there given and approved, because, said the Court of Appeals, they must have been in a position to know better than any other person exactly what was done by the chauffeur to prevent the occurrence, and to know the rate of speed at which the car was moving, and the proximate cause of the injury. Blanchard v. Ogletree, 41 Ga. App. 4 (152 S.E. 116), was an action for damages on account of the homicide of the plaintiff's daughter who was killed in an automobile as the invited guest of the defendant who was driving the car. In that case it was held proper to give in charge the Code section, because the plaintiff failed to introduce as a witness one who was a passenger in the automobile at the time of the occurrence, and who was present in court and sworn as a witness, and who had likewise brought suit against the defendant for injuries sustained at the same occurrence, in which suit he was represented by the same counsel as those of the plaintiff, but placed her reliance instead upon secondary evidence in the form of testimony of declarations made by the defendant, not certain and clear as to their proper import.

The principle embodied in the Code section now under discussion was given in charge in Weinkle v. Brunswick Western R. Co.,107 Ga. 367 (33 S.E. 471). A reversal was had, this court declaring: "But no presumption will ever arise prejudicial to the party failing to produce the witness, provided the jury are satisfied from the evidence before them that the party who had such witness accessible has nevertheless proved his claim or established his defense. The failure to call and have sworn witnesses who are accessible and peculiarly within the power of a party will authorize argument by counsel before a jury, that in case the jury be in doubt as to the truth of the transaction they might infer that the absent witnesses, if in court, would have furnished evidence prejudicial to the party who has failed to produce them. If a litigant sees proper to rest his case upon one witness, although many others may be accessible, he has a right to do so, and the law imposes upon him no duty to do otherwise. Therefore the law does not require a railroad company to produce all of its employees who were engaged in the running of a train the operation of which caused damage to any one, when a suit growing out of such alleged damage is on trial. If the jury believe that the defense is established out of the mouths of the witnesses called, they should not find against the company solely on the ground that there were other witnesses to the transaction who were not produced." Citing Savannah, Florida Western Ry.Co. v. Gray, 77 Ga. 440 (3 S.E. 158); Anderson v.Savannah Press Publishing Co., 100 Ga. 454 (28 S.E. 216);Western Atlantic Railroad Co. v. Morrison, 102 Ga. 319 (29 S.E. 104, 40 L.R.A. 84, 66 Am. St. R. 173). A somewhat similar charge was reversed in Central of Georgia Railway Co. v. Bernstein, 113 Ga. 175 (38 S.E. 394), the court in its opinion saying: "Where it does not appear that the party holds back evidence within his power to produce, the non-production of more full and definite evidence than he presents raises no presumption against him; and there should be no charge given to the jury on the subject of such a presumption." The court citedSchnell v. Toomer, 56 Ga. 168; Savannah, F. W. Ry. v.Gray, supra, and Weinkle v. Railroad Co., supra. See alsoBrothers v. Horne, 140 Ga. 617 (3) (79 S.E. 468). Many of the previous cases were cited in Bank of Emanuel v. Smith,32 Ga. App. 606 (124 S.E. 114). In holding a similar charge erroneous, the Court of Appeals said: "Especially was it error against the plaintiff to give this Code section in charge, under the circumstances appearing in the motion for a new trial, namely, that the instruction was given upon the oral request of the attorney for the defendant, made in the presence of the jury, after the judge had completed his general charge, and had ``reference only to the failure of the plaintiff to produce and swear' the former cashier."

The record shows that Maggie Gaines was in court, and had been sworn as a witness by the propounders. She was not placed on the stand. The charge complained of was requested by counsel for the caveatrix, contending that the charge was applicable because the propounders had failed to examine Maggie Gaines as a witness. She was not a party eo nomine, but was a named legatee as to the residue of the property, and therefore vitally interested in the result. We are of the opinion, however, that the same considerations which forbid giving in charge the Code section when applied to a party should apply to one who, though not a nominal party, is nevertheless materially interested in the result. In Thompson v. Davitte, 59 Ga. 472, a contested will case, Davitte, the propounder, was in court, but did not testify. A request to charge, similar to that here involved, was there presented. It was refused; and in affirming that ruling this court said: "We think, on the contrary, that it is becoming, and to be commended, in a party not to testify, if he can avoid it without positive injury to the cause of truth and justice. As long as he is unheard, there should be no presumption that his silence is counseled by prudence rather than by modesty. While his case should not gain by his forbearance to testify, neither should it lose by it. Public policy forbids that a suitor should feel constrained to mount the witness-stand for no purpose but to let the jury know that he has something to say in his favor, or to show them that he can face the terrors of a cross-examination without breaking down. The encouragement of anything like competition in swearing would be too sure to breed perjury. Let those testify in their own behalf who voluntarily present themselves; but let no uncharitable imaginations light upon those who stay away, merely because they might swear if they would."

Under the facts and circumstances of this record it was error to give in charge the instruction complained of in the amended motion. Had the caveatrix introduced any evidence to support that ground of her caveat which alleged that the will was the result of undue influence practiced by Maggie on the testatrix, a different ruling might follow; but when that ground was withdrawn from the jury, and the sole issue was as to whether the alleged testatrix at the time of executing the will was possessed of "sound and disposing mind and memory," according to the meaning which the law attaches to those words, and the propounders having sworn the three subscribing witnesses, as well as others, whose testimony supported their contention that at the time the will was signed she did possess the necessary mental capacity, the jury should not have been instructed in effect that the failure to examine as a witness Maggie Gaines raised a presumption against the propounders as to the truth of the issue being submitted to the jury.

2. Since the judgment must be reversed for the reason pointed out above, and the evidence may not be the same on the next trial, no ruling is made on the general grounds of the motion.

Judgment reversed. All the Justices concur, except Duckworth,J., disqualified.