Niemes v. Niemes , 28 Ohio C.C. Dec. 61 ( 1917 )

JONES (E. H.), J.

- This court is unanimous in the opinion that the judgment of the court below should be reversed, but we are not in agreement as to the grounds upon which our judgment shall be based.

The majority of the court is of the opinion that the third and fourth grounds of reversal as designated in the separate concurring opinion are well taken. We find error in the charge and in the admission of evidence which is prejudicial and which, therefore, makes for a reversal of the judgment.

In a separate opinion our associate goes further and favors reversal not only for these reasons, but upon all the grounds contended for by plaintiffs in error.

While unwilling to say with him that the judgment below is manifestly against the weight of the evidence or that there is no evidence of undue influence, it must be admitted that the fact that the court is thus divided upon these questions, shows at least some infirmity in the proof and that these are questions upon which the minds of men may and indeed do differ.

Such being the situation1 confronting the learned judge who presided at the trial, it became his duty in charging the jury to avoid a departure from tbe evidence or, rather, to confine himself to the law applicable to the facts brought out or'supported by evidence adduced during tbe trial.' This' was not done, when the court in its general charge said:

1 ‘ If, however, there is a preponderance of the evidence showing * * * that said instrument was executed by John Nie-mes while under the undue influence of defendants, or any of them, then said instrument should be declared to be not the last will and testament of John Niemes. ” *******

‘ ‘ The exercise of undue influence need not be shown by direct proof. It may be inferred from circumstances; but these circumstances must be shown by the evidence and be such as to justly lead to the inference that undue influence was employed and the will was not the wish or intention of the testator. * * * If deceived by misrepresentations or coerced by threats or solicitation or persuasion, or even by mercenary kindness or attentions, or influenced by the constant pressure of a dominating or controlling mind which constrained him into executing a will he would not of his own inclination have made, then the jury may find that undue influence has been exerted over the mind of the testator. ’ ’

There is no evidence of misrepresentation or deception, coercion or threats. It was error to use such words in the absence of evidence upon which to base them. As to the probable effect of an unwarranted charge of this kind upon the jury, we fully agree with the following from the brief of counsel for plaintiffs in error:

“When the presiding judge thus states in detail contingencies upon which the will may be set aside, the jury is entitled to infer that he is speaking of something, the existence of which the jury is at liberty to infer from the evidence under consideration. The jurors do not accept such a charge as an abstract lecture on the subject of undue influence in general. On the contrary, it is supposed to be given and is accepted in the concrete, with strict application to the case in hand, and where the judge speaks of the possibility of ‘coercion, threats, misrepresentation and deceit,’ they certainly think they have a right to go as far as he and ‘infer from circumstances’ that some of those vicious elements produced the will in question.”

It is such a well settled principle, that courts must limit the charge to the facts which the evidence tends to establish, that we deem citation of authorities unnecessary.

We are of the opinion, .also, that the court erred in permitting a number of lay witnesses to testify as to the lack of ability of the testator “to understand and decide large and complicated business propositions.” Questions of such import were asked numerous lay witnesses, and answers given, over objection by the defendants. The porters, janitors, etc., employed in and about testator’s saloon, were permitted'to say to the jury that in their opinions Mr. Niemes could not understand and decide large and complicated business transactions.

It is claimed that our Supreme Court has decided such evidence to be admissible in Bahl v. Byal, et al, 90 Ohio St., 129 [106 N. E. 766], The portion of the syllabus relied upon reads thus:

“It is competent for the physician of a testator to express an opinion as to the actual condition of his patient’s mind, founded on his study and observation of the testator while in professional attendance on him at the time and prior to the date of the will, and whether he was capable of comprehending large and complicated business propositions or the distribution of a large estate. ’ ’

We also quote from the opinion, page 135:

‘1 Preceding the questions and answers referred to, the physician had testified to his complete knowledge of, and acquaintance with, the physical and mental condition of Mr. Byal covering a period of about fifteen years prior to this death. This knowledge had been obtained by the study of those conditions while in the performance of his duties as the physician of testator during that period and through the close association and complete opportunity which follow that relationship. In that testimony the doctor had fully described the gradual, well-defined and constant decline in the mental and physical powers of the testator after the year 1900, due to the influences of extreme old age, the effects upon his nervous system of different attacks of, sickness and of painful and exhausting operations on his eyes. ’ ’ ;

And from page 137:

‘ ‘ The last three questions differed from those that preceded them in that they inquired for the opinion of the doctor as to the capacity of the testator based upon the knowledge which the doctor himself had of his mental and physical condition, all of which he had fully detailed in the preceding parts of his evidence. He was asked to take into consideration the diseased and enfeebled condition of the testator, both mentally and physically, as he had already described it, and to give an opinion as to whether he was capable qf understanding and deciding large and complicated business propositions, and the division and distribution of an estate valued at about $70,000. It called for his opinion as an expert, based on facts within his own knowledge and as to which he had testified, concerning the capacity of the testator to comprehend the matters referred to. This was an evidential fact, proper to be given to the jury as evidence, to be considered by them along with all the other evidence In the ease in the determination of the ultimate question at issue.”

It is true that the question propounded to the family physician in the above case was the same question asked the employees and acquaintances of testator. But in other respects there is a vast difference. The Supreme Court, in Bahl v. Byal, supra, bases its opinion, holding the evidence admissible, upon the fact that the witness had been for fifteen years the physician of the testator, and that the question and answer were preceded by a long examination of the doctor during which he had detailed the gradual decline of his patient into a condition of enfeebled body and mind.

We do not think the rule established in that case should be extended so as to apply to the very different character of testimony allowed by the trial court in the instant ease.

For these reasons the judgment will be reversed, and a new trial granted.

Jones, (O. B.), J., concurs.