BALL v. FLESHMAN

BALL v. FLESHMAN
1938 OK 380
83 P.2d 870
183 Okla. 634
Case Number: 27174
Decided: 06/07/1938
Supreme Court of Oklahoma

BALL et al
v.
FLESHMAN et al.

Syllabus

¶0 1. The question of whether a case is legal or equitable in its nature is determinable by the pleadings, rights and remedies of the parties, and if it appears that the primary cause of action is equitable in its nature and that there are other issues of a legal nature which are incidental to the primary cause of action, the cause is one of equitable cognizance and will be determined on equitable principles.
2. In a case of equitable cognizance, the judge may call a jury or consent to one for the purpose of advising him upon the questions of fact, but he may adopt or reject its conclusions as he sees fit and the whole matter must eventually be left to him to determine. It is not only the right, but the duty, of the court in such a case to determine all questions of fact as well as of law.
3. In a case of equitable cognizance this court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed unless it is made to appear that such findings and judgment are against the clear weight of the evidence.
4. Instructions to a jury furnish no ground of error on appeal in a case of equitable cognizance.
5. The testimony of a witness, who is a party to the action, that a signature affixed to a stock certificate, which does not constitute the subject of the litigation, is a genuine signature of a decedent, merely involves a matter of opinion and is not a transaction or communication between the witness and decedent within the meaning of Sec. 271, O.S.1931 (12 Okl.St.Ann. § 384).
6. Where a party to an action filed a motion for a new trial on the ground of newly discovered evidence, and it appears from all the facts and circumstances in the case that such party, by the use of due diligence, could have produced such evidence at the trial and the court refuses a new trial thereon, the same does not constitute reversible error.
7. Alleged misconduct of attorney for prevailing party regarding his statements at the trial will not be reviewed by this court, where such statements are not incorporated in the case-made, but appear only as an allegation in the motion for new trial.

Appeal from District Court, Blaine County; W. P. Keen, Judge.

Action by Irene M. Ball and others against Elvin B. Fleshman and others to have deeds set aside, to recover share of the estate of Robert A. Fleshman, deceased, and for equitable relief. From a judgment in favor of the defendants, the plaintiffs appeal.

Judgment affirmed.

Application for leave to file second petition for rehearing denied; Osborn, C. J., and Phelps, J., diseenting.

OSBORN, C. J., and PHELPS, J., dissenting.

ACTION 25(2)
13 ----
13II Nature and Form
13k21 Legal or Equitable
13k25 Under Codes and Practice Acts
13k25(2) Nature of action.
Okla. 1938

The question whether a case is legal or equitable in its nature is determinable by the pleadings, rights, and remedies of the parties.

ACTION 25(2)
13 ----
13II Nature and Form
13k21 Legal or Equitable
13k25 Under Codes and Practice Acts
13k25(2) Nature of action.
Okla. 1938

Where the primary cause of action appears to be equitable in its nature, the cause is one of equitable cognizance and will be determined on equitable principles, though there are other issues of legal nature which are incidental to the primary cause of action.

ACTION 25(2)
13 ---
13II Nature and Form
13k21 Legal or Equitable
13k25 Under Codes and Practice Acts
13k25(2) Nature of action.
Okla. 1938

Case was of equitable cognizance, where the gravamen of the action was the cancellation of deeds, and where, under the allegations of petition, the right to possession as well as the legal title would follow as an incident to cancellation.

APPEAL AND ERROR 688(2)
30 ----
30X Record
30X(M) Questions Presented for Review
30k688 Conduct of Trial or Hearing
30k688(2) Arguments and conduct of counsel.
Okla. 1938

Alleged misconduct of attorney in statements made at trial would not be reviewed by the Supreme Court, where the statements were not incorporated in the case-made, but appeared only as allegations in motion for new trial.

APPEAL AND ERROR 1009(4)
30 ----
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1009 Effect in Equitable Actions
30k1009(4) Against weight of evidence.

Okla. 1938

In action to cancel deeds, court's finding that grantor had sufficient mental capacity was not against the clear weight of the evidence.

APPEAL AND ERROR 1009(4)
30 ----
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1009 Effect in Equitable Actions
30k1009(4) Against weight of evidence.
Okla. 1938

In action for cancellation of deeds, court's finding that deeds were not forged was not against the clear weight of the evidence.

APPEAL AND ERROR 1009(4)
30 ----
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)3 Findings of Court
30k1009 Effect in Equitable Actions
30k1009(4) Against weight of evidence.
Okla. 1938

In action for cancellation of deeds, court's finding that undue influence had not been exercised on grantor was not against the clear weight of the evidence.

APPEAL AND ERROR 1065
30 ----
30XVI Review
30XVI(J) Harmless Error
30XVI(J)18 Instructions
30k1065 In equitable actions.
Okla. 1938

Instructions to a jury in a case of equitable cognizance furnished no ground of error on appeal.

APPEAL AND ERROR 1069.1
30 ----
30XVI Review
30XVI(J) Harmless Error
30XVI(J)19 Conduct and Deliberations of Jury
30k1069.1 In general.
Okla. 1938

The misconduct of jury in a case of equitable cognizance furnished no ground of error on appeal.

NEW TRIAL 102(1)
275 ----
275II Grounds
275II(H) Newly Discovered Evidence
275k102 Diligence in Procuring Evidence
--------- 83 P.2d 870 ----------
275k102(1) Necessity for diligence.

Okla. 1938

Where a party to an action apparently could have produced at the trial, by the use of due diligence, newly discovered evidence, court's refusal to grant new trial on ground of newly discovered evidence did not constitute reversible error.

NEW TRIAL 102(7)
275 ----
275II Grounds
275II(H) Newly Discovered Evidence
275k102 Diligence in Procuring Evidence
275k102(7) Matters of record.
Okla. 1938

Where plaintiffs, in action to cancel deeds on ground that they were forgeries, did not obtain newly discovered evidence consisting of documents with grantor's signature until after the trial, though the documents on which the signature appeared were matters of public record in county of grantor's residence, plaintiffs failed to show "due diligence" entitling them to new trial.

TRIAL 370(2)
388 ----
388X Trial by Court
388X(A) Hearing and Determination of Cause
388k369 Trial of Special Issues by Jury
388k370 In General
388k370(2) Authority and discretion of court in general.
[See headnote text below]

TRIAL 374(2)
388 ----
388X Trial by Court
388X(A) Hearing and Determination of Cause
388k369 Trial of Special Issues by Jury
388k374 Verdict
388k374(2) Conclusiveness.
Okla. 1938

In cases of equitable cognizance, the judge may call a jury or consent to one for purpose of advising him on questions of fact, but he may adopt or reject conclusions as he sees fit, since it is his duty in such a case to determine all questions of fact as well as of law.

WITNESSES 159(3)
410 ----
410II Competency
410II(C) "Dead Man'S" Statutes and Rules
410k157 Subject-Matter of Testimony
410k159 Transactions or Communications Between Witness and Person Subsequently Deceased or Incompetent
410k159(3) What constitutes transaction in general.
Okla. 1938

In action for cancellation of deeds which were allegedly forged in name of decedent, the testimony of a party to the action that a signature affixed to a stock certificate was a genuine signature of a decedent was admissible as involving merely a matter of opinion and not a "transaction" or "communication" between witness and decedent, within meaning of statute prohibiting such testimony. 12 Okl.St.Ann. § 384.

WITNESSES 159(3)
410 ----
410II Competency
410II(C) "Dead Man'S" Statutes and Rules
410k157 Subject-Matter of Testimony
410k159 Transactions or Communications Between Witness and Person Subsequently Deceased or Incompetent
410k159(3) What constitutes transaction in general.
Okla. 1938

In action for cancellation of deeds allegedly executed by a decedent, testimony of defendants' witness that he had no conversation with decedent concerning the deeds was not objectionable on ground that it was concerning a "transaction" or "communication" with decedent prohibited by statute. 12 Okl.St.Ann. § 384.

Roy H. Ball and Clay M. Roper, both of Oklahoma City, and E. Blumhagen, of Watonga, for plaintiffs in error.
Falkenstine & Fisher and Theodore Graalman, all of Watonga, for defendants in error.

HURST, Justice.

¶1 Robert A. Fleshman died intestate on November 12, 1933. He was survived by his widow, one son, one daughter, and three grandchildren, who were the children of a deceased daughter. This action was brought by the grandchildren against the widow, the son and his wife, and the daughter and her husband. The controversy involves the validity of two warranty deeds dated April 23, 1932, executed by Robert A. Fleshman and his wife, Mary A. Fleshman, conveying all of the real estate then owned by them to their son and daughter, to the exclusion of the grandchildren, but reserving to the grantors "All the rents and income from said land during their natural life time."

¶2 The plaintiffs in their petition set out two causes of action. In their first cause of action they alleged, in effect, that Robert A. Fleshman had been mentally incompetent for several years prior to his death, and that the deeds were acquired by undue ---------- 83 P.2d 872 ----------influence and were null and void. It was alleged also that Robert A. Fleshman "did not sign the purported deeds", and that they now "bring this action for the purpose of cancelling and setting aside of said deeds and for the purpose of the court causing said estate to be administered or to grant to the plaintiffs such equitable relief to which they are entitled." The material allegations of the prayer are as follows: "wherefore: plaintiffs pray that they have and recover from the defendants their proportionate share of the estate of Robert A. Fleshman, deceased, and that the said deeds * * * be cancelled to the extent of the interest of said plaintiffs * * *."

¶3 In plaintiffs' second cause of action they incorporated the allegations of the first cause of action and sought to recover certain rents and profits arising from said land, and also attorney's fees and exemplary damages.

¶4 The cause was submitted to a jury and a verdict returned in favor of defendants. Judgment was entered thereon and plaintiffs bring this appeal.

¶5 [1] [2] [3] 1. We must first determine whether this action is legal or equitable in its nature. In Mid-Continent Life Insurance Co. v. Sharrock, 1933, 162 Okl. 127, 20 P.2d 154, it was held that the question of whether a case is legal or equitable in its nature is determinable by the pleadings, rights, and remedies of the parties, and if it appears that the primary cause of action is equitable in its nature and that there are other issues of a legal nature which are incidental to the primary cause of action, the cause is one of equitable cognizance and will be determined on equitable principles. Also in Warner v. Coleman, 1924, 107 Okl. 292, 231 P. 1053, where the petition commingled the legal action of ejectment with the equitable action of rescission, it was held that a petition which does not allege facts to show that plaintiff is the owner of the legal or equitable title, and entitled to immediate possession of the premises, but alleges a state of facts for rescission of a deed on the ground of fraud, on account of which equitable relief is prayed to the end that the title be reinvested in the plaintiff, the action is one of equitable cognizance, although the possession may follow as an incident to the granting of the equitable remedy. We think it clear in the instant case that the gravamen of the action is the cancellation of the deeds. In fact, plaintiffs so stated in their petition. Moreover, there are no allegations to the effect that plaintiffs are the owners of the legal or equitable title to the real estate in controversy, or that they are entitled to the immediate possession thereof. Under the allegations of the petition, the right to possession as well as the legal title would follow as an incident to the granting of the equitable remedy of cancellation. The answer of defendants, being a general denial, injected nothing additional into the action in this regard. It therefore appears that this is a case of equitable cognizance.

¶6 [4] [5] 2. The first contention of plaintiffs deals with the sufficiency of the evidence. In determining this issue certain rules are fundamental. In an equitable action the judge may call a jury or consent to one, for the purpose of advising him upon the questions of fact, but he may adopt or reject its conclusions, as he sees fit, and the whole matter must eventually be left to him to determine. Mid-Continent Life Ins. Co. v. Sharrock, supra. We must treat the general findings of the court as a finding of every specific thing necessary to sustain the judgment and must examine the whole record and weigh all the evidence. The judgment of the trial court will be reversed only if, from such examination, we find it to be against the clear weight of the evidence.

¶7 [6] [7] With these rules in mind we have carefully read the voluminous record in this case. On the issue of mental capacity and undue influence, the evidence was directly conflicting. Plaintiffs and their witnesses testified as to the peculiar conduct of the deceased for two or three years prior to his death and as to the conduct of his wife in dealing with him, tending to show that he was mentally deranged. They also gave their opinions to that effect. On the other hand the acts referred to were flatly denied by the defendants and their witnesses, and they expressed their opinions that deceased was mentally competent and transacted his own business up until a few weeks before his death. We find no evidence of undue influence and such evidence as there is on this point was to the contrary. It would serve no useful purpose to comment at length upon the evidence relied upon by the parties in this connection, for we think it quite apparent ---------- 83 P.2d 873 ----------that the finding of the trial court on this issue of fact is not against the clear weight of the evidence.

¶8 [8] The issue of forgery, however, presents a more difficult question. We frankly state that we see scarcely any resemblance between the signatures of Robert A. Fleshman, admitted to be genuine, and those alleged to be forged. Moreover, a handwriting expert testifying on behalf of plaintiffs stated that they were forgeries. But he did not state, except upon hearing had on motion for new trial, who, in his opinion, was the author of the forgery. His testimony was negative in character. Likewise, plaintiffs themselves stated that the handwriting on the deeds was not that of deceased. The record also discloses certain facts which plaintiffs assert cast a doubtful light on the whole transaction, namely, the fact that the deeds bore the date of April 23, 1932, and were not recorded until December 11, 1933, the day before Robert A. Fleshman died, both being recorded on the same day; the fact that plaintiffs were not permitted to see the deeds until they procured a court order; and the facts purporting to show the interest of defendants' alleged disinterested witnesses.

¶9 On the other hand, the evidence adduced by defendants was directly contradictory on practically every material point. On their behalf, a banker, who was the notary public taking the acknowledgment on the deeds in question, testified that they were signed by Robert A. Fleshman in his presence and that he saw deceased affix his signature thereto. He further detailed the events in connection with the execution of the deeds. To impeach his testimony plaintiffs produced witnesses who stated that his reputation in the community for truth and veracity was bad, but to rebut this, defendants introduced similar evidence to the contrary. To further impeach the testimony of this witness, plaintiffs brought out the fact, upon cross examination, that when plaintiffs' attorney called upon the witness shortly before the trial to inquire if the deeds were signed by someone on behalf of deceased, the witness refused to answer other than to advise them that he would testify at the trial. But defendants also introduced the testimony of another employee of the bank where deceased kept his account to the effect that he knew the handwriting of deceased and that the signatures on the deeds were genuine. In addition to that, the most convincing testimony comes from Mary A. Fleshman, the widow of deceased, to the effect that the signature of deceased on a certain stock certificate introduced in evidence was genuine and that she saw him sign it in her presence. In our opinion, the signature on the stock certificate is identical to the signatures on the deeds in question. There is nothing in the record to discredit the testimony of this witness, and defendants' explanation of the discrepancy in the signatures admitted to be genuine and those alleged to be forged seems to us to be plausible. The former were written in pencil and appear to be indorsements on checks, while the signatures alleged to have been forged were written in ink and appeared on the deeds of conveyance. It is not improbable that a person making disposition of his property would be nervous and proceed with more caution than he would in an every-day transaction such as indorsing checks, and these circumstances would result in a different appearance in the handwriting. Giving due weight to all the conflicting testimony and circumstances we cannot say that the finding of the trial court on this issue of fact is against the clear weight of the evidence.

¶10 [9] 3. Plaintiffs complain of the giving of certain instructions to the jury and of the refusal to give certain requested instructions. But, in an equity case, instructions to the jury furnish no ground of error on appeal. Mid-Continent Life Ins. Co. v. Sharrock, supra; Kentucky Bank & Trust Co. v. Pritchett, 1914, 44 Okl. 87, 143 P. 338; Barnes v. Lynch, 1889, 9 Okl. 156, 59 P. 995.

¶11 [10] 4. Plaintiffs also contend that the court erred in permitting Mrs. Robert A. Fleshman, the widow of deceased, and Elvin Fleshman, the son and one of the grantees in the deeds in question, to testify as to the genuineness of the signature of deceased on the stock certificate above referred to. It is argued that such testimony is prohibited under the provisions of Sec. 271, O.S.1931 (12 Okl.St.Ann. § 384), relating to testimony by a party to a civil action, in his own behalf, in respect to a transaction or communication had by such party with a deceased person. They rely principally upon Pancoast v. Eldridge, 1932, 157 Okl. 195, 11 P.2d 918, where it was held that a party to a civil action against the administrator of the estate of a ---------- 83 P.2d 874.----------decedent is incompetent to testify, in his own behalf, to facts which will establish an implied contract between such party and the deceased. But we do not think that the rule there urged is applicable here. The identification of the handwriting or signature of a deceased person is based upon knowledge that is independent of any communication or transaction with the deceased. By the great weight of authority, such testimony involves merely a matter of opinion, and is not a personal transaction or communication between the witness and a deceased person. See 31 A.L.R. 460; Poole v. Beller, 104 W.Va. 547, 140 S.E. 534, 58 A.L.R. 210. Therefore it was not error to admit this testimony.

¶12 [11] In this connection, plaintiffs also contend that the court erred in permitting Elvin Fleshman to testify that he did not have any conversation with deceased about the deeds. We think this testimony was not objectionable for the reason that it was the very opposite of testifying concerning a transaction or communication with the deceased grantor. Coblentz v. Putifer, 1912, 87 Kan. 719, 125 P. 30, 42 L.R.A.,N.S., 298.

¶13 [12] 5. Plaintiffs also assign as error, the misconduct of the jury. Inasmuch as the verdict of the jury is only advisory in this case, we think the same rule applies as in connection with the instructions complained of. However, we have taken the precaution to examine the evidence in this regard and find no evidence tending to show that plaintiffs were prejudiced by the irregularity complained of. Such being the case, this assignment presents no ground for reversal. Shivers v. Territory, 1903, 13 Okl. 466, 74 P. 899.

¶14 [13] [14] 6. Plaintiffs also urge that the court erred in not granting a new trial on the ground of newly discovered evidence. The evidence referred to consists of documents bearing the signature of Robert A. Fleshman, deceased, written in ink. It is contended that this evidence is not cumulative for the reason that the signatures introduced at the trial and admitted to be genuine were all written in pencil. But the documents constituting newly discovered evidence were matters of public record in the county were deceased maintained his residence, and there was no evidence that any search was made for the same prior to the trial. Plaintiffs have failed to show the exercise of due diligence, and therefore the refusal to grant a new trial is not reversible error. Peters v. Central Nat. Bank of Enid, 1935, 174 Okl. 329, 49 P.2d 1083; Parrish v. Nichols, 1936, 175 Okl. 251, 52 P.2d 54; Green v. Blancett, 1937, 179 Okl. 483, 66 P.2d 911.

¶15 [15] 7. Plaintiffs also complain of misconduct on the part of counsel for defendants and refer to certain remarks made at the trial. The principal statement complained of, however, does not appear in the record, except as an allegation in the plaintiffs supplemental motion for new trial. It is therefore not reviewable by this court. Rosenfield v. Nelson, 1924, 102 Okl. 81, 226 P. 1032; Federal Life Ins. Co. v. Firestone, 1932, 159 Okl. 228, 15 P.2d 141.

¶16 Plaintiffs also complain of the method of cross-examination employed by counsel for defendants, but it is sufficient to say that from our examination of the record, we do not think that plaintiffs could have been prejudiced by the matters complained of.

¶17 The judgment is affirmed.

¶18 BAYLESS, V. C. J., and RILEY, WELCH, CORN, and GIBSON, JJ., concur.

¶19 OSBORN, C. J., and PHELPS, J., dissent.