Mickle v. Moore , 193 Ga. 150 ( 1941 )

1. Where in response to an objection of a general nature to evidence the court states that it is admitted for a limited purpose, and the objecting party makes no further objection thereto, no valid assignment of error can be based upon the court's act in admitting the evidence.

2. Where the suit is for specific performance of a parol contract by the terms of which, in consideration of services to be rendered by petitioner, a bequest of property was to be made in a will, a charge by the judge that the plaintiff must carry the burden of proof by a preponderance of the evidence, except that the plaintiff must prove the contract and all its terms by evidence so clear and convincing that it convinces the jury beyond a reasonable doubt, is not subject to the criticism that it is confusing and prejudicial in that it confuses and intermingles the two rules relating to burden of proof and preponderance of the evidence, or that it improperly submits the two rules.

3. Where in such an action the defendants introduced evidence showing that at the time the alleged contract was executed the party did not own the property she contracted to bequeath, but that she subsequently acquired title thereto, a charge that the property thus subsequently acquired was subject to the terms of the contract is not subject to the criticism that it was not authorized by the issues made in the pleadings and was a reply to the defendants' evidence which was intended only to show that the party, being without title at the time, would not likely have entered into the contract.

4. The contract as alleged was established by the positive testimony of two witnesses; and although numerous circumstances were proved to discredit this testimony, these circumstances merely went to the credibility of the witnesses, which is a matter to be determined by the jury. The verdict is supported by the evidence, and there is no merit in the general grounds of the motion for new trial.

No. 13912. NOVEMBER 12, 1941. Miss Dillie Moore filed suit for specific performance against H. J. Mickle as administrator with the will annexed of the estate of Mrs. G. M. Moore, and six named persons as the heirs at law of Mrs. G. M. Moore. In the petition it was alleged, that the plaintiff's mother, Mrs. G. M. Moore, was seventy-seven years of age, crippled, and practically an invalid when the plaintiff's father died in April, 1932; that Mrs. Moore requested the plaintiff to remain at home and take care of her during the remainder of her life, and promised as compensation therefor to make a will bequeathing to the plaintiff the home place, including about seventy acres of land (definitely described in the petition), the house, the household and kitchen furniture, farming tools, wagon, harness, and one farm mule; that the plaintiff accepted the offer of her mother, and fully and faithfully performed her duties under the contract by operating the farm and caring for her mother until her death; and that, while Mrs. Moore executed a will, she breached her contract by failing to devise to the plaintiff the property which she had promised her. In their answer the defendants denied the material allegations of the petition, and pleaded that the plaintiff was estopped from claiming under the alleged contract, by reason of the following facts: After the execution of the alleged contract the plaintiff brought about the execution of a will by her mother, by the terms of which Mrs. Moore devised her property to the plaintiff and all the other children, except one, share and share alike. After the the death of her mother, the plaintiff was active in procuring the probate of the will in solemn form, and filed no objections or caveat to the probate, and thus made an election to take under the will.

From the plaintiff's evidence at the trial it appeared that she was the only unmarried child in the family at the time of her father's death on April 28, 1932; that she had lived in the home of her parents and had waited upon them for eleven years or more at the time of her father's death; that her mother, who had been crippled for many years, was about seventy-seven years of age at that time, and her physical condition was such that she required constant care and attention; that the plaintiff thereafter remained in the home with her mother and gave her constant attention until her death in 1938, in addition to managing the farm and performing some of the labor required in its operation. Mrs. Sallie Bonner, a sister of the plaintiff and a legatee under the will of her mother, and Paul Moore, a nephew of the plaintiff and a son of one of the defendants in the suit, testified, that they were present when the alleged contract was made between the plaintiff and her mother; that the contract as alleged was entered into a few days after the death of the plaintiff's father, when the plaintiff's mother agreed to give and devise to her the property described in the petition if she would abandon her arrangements to marry and remain in the home and care for her mother; and that the plaintiff thereupon agreed to look after her mother, and did thereafter fulfil her part of the contract. It appeared from the evidence that the plaintiff's mother obtained title to the property which is the subject-matter of the alleged contract under a year's support, which had not been set apart at the time the contract was entered into. The defendants introduced evidence to show that the plaintiff was present and was instrumental in obtaining the execution of the will by Mrs. Moore, on July 15, 1932; but the plaintiff testified that she did not know the paper executed was a will, and did not have any knowledge of the will or its contents until after the death of her mother. The defendants also introduced evidence that after the death of her mother the plaintiff prepared a deed conveying to herself the property sought by this suit, and had it presented to the heirs with request that they sign it as compensation for her services in caring for her mother; that in presenting this deed no mention was made of the alleged contract with her mother; and that there was exhibited to the heirs a writing by the mother, which in substance stated to the heirs that they could compensate petitioner in some amount, if they wished, for the services she had rendered to her. It appeared from testimony for the plaintiff that she did not herself request any of the heirs to sign the deed referred to, but that her sister, Mrs. Sallie Bonner, did so request the heirs, and that they refused.

The jury returned a verdict for the plaintiff. The defendants moved for a new trial. The judge overruled the motion, and the defendants excepted. 1. The first special ground of the motion for a new trial assigns error on the ruling admitting in evidence the following receipt: "January 1, 1933. Received of Mrs. G. M. Moore, for labor and overseeing of Mrs. G. M. Moore Estate for 1932, 1240 pounds of lint cotton at six cents per pound — $74.40. [Signed] Henry Moore." When the receipt was offered in evidence by the plaintiff, counsel for defendants objected on the grounds that it was irrelevant, immaterial, prejudicial, and not binding upon any of the heirs of the Mrs. G. M. Moore estate. The court thereupon ruled that the evidence was admitted as against the defendant Henry Moore, but not against the other defendants, and that it was admitted only to illustrate whether Henry Moore made a charge against the estate at the time the receipt was supposed to have been issued, and that it was not to be considered as an offset against the share of Henry Moore in the estate. No further objection was made by counsel for the defendants.

It must appear that objections were urged at the time evidence was admitted. It is not sufficient to urge grounds of objection for the first time in a motion for a new trial. Phillips v.State, 102 Ga. 594 (27 S.E. 699); Bourquin v. Bourquin,110 Ga. 440 (35 S.E. 710); White v. State, 116 Ga. 573 (42 S.E. 751); Wynne v. State, 123 Ga. 566 (51 S.E. 636);Thompson v. Lanfair, 127 Ga. 557 (2) (56 S.E. 770). The record shows that although defendants' counsel objected to the evidence when offered, a ruling of the court subsequently to that objection, limiting the evidence to one specific issue and to only one defendant, was not challenged. After such ruling by the court the defendants were aware of the purpose for which the evidence was admitted, and made no further objection to it. Therefore no valid assignment of error can be based on the ruling of the court in thus admitting the evidence. Bowers v.Southern Railway Co., 10 Ga. App. 367 (6) (73 S.E. 677);Duckett v. Martin, 23 Ga. App. 630 (4) (99 S.E. 151). This ground of the motion is without merit.

2. The second special ground assails a portion of the charge, on the ground that it is confusing. The charge complained of, in substance, states that in the case on trial the burden generally is upon the plaintiff to prove her case by a preponderance of the evidence, but there is an exception to this general rule which will be given when the court has finished giving the rules of law with reference to the preponderance of the evidence. Then instruction on the rules applicable to the preponderance of the evidence was given, followed immediately with the statement that there is an exception to the rule just given, which is applicable in this case, and that is that the burden is on the plaintiff to make out the alleged contract and the terms thereof so clearly, strongly, and satisfactorily as will leave no reasonable doubt in the minds of the jury that Mrs. G. M. Moore entered into the agreement with the plaintiff as alleged in the petition; and if the plaintiff has failed to carry this burden so clearly, strongly, and satisfactorily as to leave no reasonable doubt in their minds as to that phase of the case, she should not recover, and the jury would not be authorized to find a verdict in her favor, but it would be their duty to find a verdict in favor of the defendants. It is contended that the charge intermingled the burden of proof and preponderance of the evidence, and was thus misleading and confusing to the jury and harmful and prejudicial to the defendants, and that the charge was error because it instructed the jury that both rules applied in this case.

In Warren v. Gay, 123 Ga. 243 (51 S.E. 302), in ruling upon a charge similar to that here assailed, this court said: "When the various portions of the charge in reference to the degree of proof are considered together, the effect of the instructions was simply, that this was a civil case, that the jury were authorized to reach a conclusion from the preponderance of the evidence, but that this preponderance should be such in this particular case that before they could find in favor of the parol contract they must be clearly satisfied of the existence of the contract. This is the law." The charge here correctly instructed the jury that the burden was on the plaintiff to produce evidence of the contract and its terms sufficient to convince the jury beyond a reasonable doubt that such a contract was made, and on the other phases of the case, such as proof of performance on the part of the plaintiff, the burden was upon her to prove her case by a preponderance of the evidence. The charge is not subject to the criticism made. Printup v. Mitchell,17 Ga. 558 (63 Am. D. 258); Redman v. Mays, 129 Ga. 435 (59 S.E. 212); Farr v. West, 152 Ga. 595 (3) (110 S.E. 724);Hankinson v. Hankinson, 168 Ga. 156 (3) (147 S.E. 106);Crosby v. Higgs, 181 Ga. 314 (2) (182 S.E. 10). The plaintiffs in error cite Citizens Southern National Bank v.Kontz, 185 Ga. 131 (4) (194 S.E. 536), in support of this ground. It was there ruled, that, in charging that in transactions between a man and his wife, slight circumstances under certain conditions may be sufficient to satisfy the jury of fraud, the court erred because the "certain conditions" referred to in the charge were not given. Nothing ruled in the following cases, relied upon by plaintiffs in error, sustains the attack upon this charge: Wylly v. Gazan, 69 Ga. 506; Savannah,Florida Western Railway Co. v. Hatcher, 118 Ga. 273 (45 S.E. 239); Morris v. Warlick, 118 Ga. 421 (2) (45 S.E. 407);Morrison v. Dickey, 119 Ga. 698 (46 S.E. 863); SavannahElectric Co. v. McClelland, 128 Ga. 87 (2) (57 S.E. 91);Barnes v. Cowan, 147 Ga. 478 (94 S.E. 564); Tidwell v.Garrick, 149 Ga. 290 (99 S.E. 872).

3. The remaining special ground complains of an excerpt from the charge in which the jury was instructed, in substance, that if one person should make a contract with another, for a valuable consideration, to make a will devising certain property, and at the time of making such contract did not have title to such property, but if such person contracting to make the will did at a later date acquire title, the contract would be enforceable if it contained all the essentials necessary to make it valid; and the fact that such party did not have title to the property involved at the time of making the contract, but acquired it later, would not release such party from the obligation of the contract, if all the essentials of such contract were present. The criticism of this charge is that it is inapplicable, misleading, prejudicial, and confusing, for the reason that there was no issue or pleading authorizing the same, and it amounted to an answer by the court of evidence introduced by movants as circumstances to show that Mrs. Moore did not enter any contract.

The general rule is that instructions to the jury must be based upon evidence. A charge is objectionable which correctly states general principles but is not applicable to the facts.Sikes v. Sikes, 153 Ga. 725 (113 S.E. 416, 24 A.L.R. 1324). The subject dealt with in the charge here assailed was not put in issue by the pleadings, but movants made it an issue by voluntarily introducing evidence on that subject. A defense not pleaded may be based on evidence which is admitted without objection, and the court is authorized to charge the jury on such evidence. Freeze v. White, 120 Ga. 446 (47 S.E. 928);Waynesboro Planing Mill v. Perkins Manufacturing Co., 35 Ga. App. 767 (3) (134 S.E. 831). Although the purpose of movants in introducing evidence to show that Mrs. Moore did not have title to the property involved on the date of the alleged contract, but subsequently acquired title on her application for a year's support, might have been to persuade the jury that she would not likely have made the contract for this reason, yet the purpose of the evidence was not so limited; and in the absence of the instructions complained of, the jury might have concluded from such facts that Mrs. Moore could not and did not bind the property by such a contract; and thus the petitioner would have suffered unjustifiable injury. Since movants concede that under the law the after-acquired title would subject the property to the terms of the contract, they can not successfully contend that the instruction by the court to this effect was injurious to them. The charge deprives movants of no benefit which they were entitled to derive from the evidence on that subject. This ground of complaint is without merit.

4. The general grounds are strongly urged by the plaintiffs in error. The sufficiency of the alleged contract as set forth in the petition as amended is not challenged as to definiteness. It is conceded that petitioner proved the contract as alleged, by the testimony of two witnesses, Mrs. Sallie Bonner and Paul Moore, who testified that the contract was made in their presence; and counsel in their brief state that there could be no direct testimony showing that the contract was not made, and that the best evidence as to whether the testimony showing the contract is true or false is the conduct of the two contracting parties. It is insisted that the following circumstances disprove the existence of such a contract: (a) No title in Mrs. Moore to the property at the time. (b) Execution of a will by Mrs. Moore, subsequently to the contract, in which the provisions of the contract were not complied with, with the knowledge of petitioner. (c) Mrs. Moore, being intelligent, would not have forgotten, in making her will, such an important contract within two or three months. (d) Mrs. Bonner and petitioner attempted to get the heirs to deed certain property to petitioner because of certain notes in the handwriting of Mrs. Moore. (e) Mrs. Bonner signed a petition to probate the will, and petitioner talked to the ordinary about it. (f) Petitioner tried to prove that she knew nothing of the will. (g) The disappearance of the writings in the handwriting of Mrs. Moore. Counsel for plaintiffs in error quote from Lansdell v. Lansdell, 144 Ga. 571, 573 (87 S.E. 782), as follows: "Claims of this nature against dead men's estates, resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done." The rule referred to in division 2 of this opinion, requiring proof of the contract beyond a reasonable doubt, is designed for the purpose of affording adequate protection in such cases. It is true that one claiming under such a contract must establish that claim by direct and clear evidence (Morris v. Dunaway,176 Ga. 881, 169 S.E. 129; Brogdon v. Hogan, 191 Ga. 647,13 S.E.2d 666); but this requirement was met by the petitioner in the present case. This fact is conceded; but the complaint urged is that for the reasons and circumstances recited the credibility of the witnesses by whom the testimony was produced was destroyed. This argument might properly be made to the jury, and probably was; but this court is without authority to decide that question. The Code, § 38-1805, declares: "The credibility of a witness is a matter to be determined by the jury under proper instructions from the court." See Merritt v.State, 190 Ga. 81 (8 S.E.2d 386). The verdict is supported by the evidence, and the general grounds of the motion are without merit.

Judgment affirmed. All the Justices concur.