Curtice v. Dixon , 74 N.H. 386 ( 1907 )

The plaintiff claimed at the trial that Merrill was mentally incompetent to do business at the time of the transaction in question and that he was unduly influenced by the defendant. The plaintiff also contended that the sum of $20,000 which Merrill gave to the defendant under the supposed contract was so exorbitant, in view of the size of his estate and the claims of his other relatives, that it afforded evidence that he was of unsound mind or was subject to the control of the defendant. That it might constitute evidence of that character, when considered in connection with other evidence bearing upon the questions of his mental capacity and her influence over him, cannot be denied as a matter of law. While it might be of little weight, it furnished a logical basis for the deduction suggested.

In reply to this contention on the part of the plaintiff, the defendant insisted that she was a particular favorite of her uncle, and that this fact led him to favor her, to the prejudice of his other relatives. On the other hand, the plaintiff contended that she was not his favorite, that he disliked her because of her quarrelsome disposition, and that this fact tended to prove that he did not enter into the arrangement with her while in the reasonable possession of his faculties, uninfluenced by her. The issue, though subsidiary one, was clearly presented: Did Merrill dislike the defendant because he believed she had a violent or unreasonable temper? If he did, it is not improbable that he entertained toward her feelings of disapproval or hostility. The defendant's position that she was her uncle's favorite made this a direct — not a merely collateral — issue. To prove the affirmative of it, the plaintiff showed that Merrill had said that he did not like the defendant because "she is always in trouble with somebody." This evidence, received without objection, had a direct tendency to prove the plaintiff's contention and was material, particularly as it appeared that Merrill had known the defendant intimately many years and had been in a position to observe her traits of character. In addition to this evidence, and to strengthen and corroborate the testimony that Merrill disliked the defendant for the reason above given, the plaintiff was permitted, subject to exception, to show specific acts of ill-temper and quarrelsomeness on the part of the defendant, when Merrill was not present. If the instances of her quarrels had occurred in the presence of Merrill, they would afford some evidence that he might reasonably entertain the idea that she was quarrelsome, and hence that he did entertain it. One's actual observation of a transaction is certainly evidence that he believed it took place. Nothing could be more elementary. And as traits of character are indicated and shown by actions, A's belief that B possesses a disposition to quarrel with his associates would be a reasonable belief if he had seen B manifest such a trait by acts or language. But if there was no evidence that A had observed such acts or heard such language on the part of B, and had been in no position where he could acquire a knowledge of B's peculiarities, specific instances of B's violent temper would not tend to show that A entertained the belief. Whether his belief might be proved by the common reputation in which B was held by those who knew him need not be considered; for the point is, not what B's character was as indicated by his reputation, but what did A think or believe it was. One ground on which it could be found that he reasonably might have a belief as to B's character would be the fact of his actual observation of B's acts showing his character; but that is not the only evidence authorizing such an inference.

If the issue had been merely whether the defendant had or possessed a violent temper, specific acts of unreasonable violence on her part would logically tend to prove the affirmative. The fact of her characteristic in this respect would not depend exclusively her general reputation. A person's reputation and character are not the same. Reputation, as evidence, may tend to prove character; but a man may in fact have a good character while suffering from a bad reputation. Bottoms v. Kent, 3 Jones L. 160. In this case no attempt was made to prove her character by general reputation. Her general reputation for kindness and patience was not in issue; and much difficulty in determining the question of the admissibility of the evidence of specific acts of ill-temper is avoided by clearly understanding that the evidence was admitted as corroborative proof that her uncle regarded her as a quarrelsome person. If she repeatedly exhibited an unreasonable temper toward people with whom she came in contact, even in the absence of her uncle, the inference would not be unreasonable or illogical that he entertained the belief that she was quarrelsome, based upon his observation of her during his intimate acquaintance with her for many years. If it was shown by specific instances, not occurring in his presence, that as a matter of fact — not as a matter of reputation — she was "always in trouble with somebody," it would be difficult to understand why that fact would not have a logical bearing on the probability of his entertaining a similar idea in regard to her. If it is claimed that A thinks B is a great mathematician, for instance, the fact that he has performed remarkable feats in that line, though unknown to A, has some tendency to prove that A does think so, after proof of A's long and intimate association with B in scientific pursuits requiring skill of that character.

If the fact that a person has done a particular thing on a single occasion has a tendency to prove he is in the habit of doing it under similar circumstances (Lyman v. Railroad, 66 N.H. 200; Smith v. Railroad,70 N.H. 53; Tucker v. Railroad, 73 N.H. 132), the fact that he has done it on many occasions must also have such a tendency. Plummer v. Ossipee,59 N.H. 55, 59. In fact, the reason evidence of that character is sometimes excluded is not because it is irrelevant to the matter in issue (Darling v. Westmoreland, 52 N.H. 401, 405, 409), or because there is no logical connection between it and the fact to be proved, but because the evidence has too great a tendency to prove it. In other words, because the evidence has a tendency to excite undue prejudice. 1 Wig. Ev., ss. 55-57. It may be relevant, but inadmissible on other grounds.

Whether a man was negligent in a given situation is provable in this state by evidence of specific acts tending to show his negligent habit. "In this state specific instances of a party's negligence of the same general character of those complained of, and which are not too remote in point of time, may be put in evidence to show his negligence at the particular time, upon the theory that a person is more likely to do a thing in the way he is in the habit of doing it, when he acts thoughtlessly and without an actual intention of injuring any one." Proctor v. Freezer Co., 70 N.H. 3, 4. Upon the same theory, it has been held that it may be shown by specific instances that a party rode "her bicycle on the sidewalk near the place of the accident," to prove "that at that time she was occupying that part of the highway." Kenney v. Hampton, 73 N.H. 45, 46. On the question whether a tree was situated so near the traveled path of a highway as to render the highway at that point defective and dangerous to people traveling thereon, evidence is admissible to show that at various times teams and carriages ran against the tree. Griffin v. Auburn, 58 N.H. 121. The character of the tree as a dangerous obstruction was proved by specific instances of danger occasioned by it. This case merely followed the decision in Darling v. Westmoreland, 52 N.H. 401, where it was held that it might be shown that a pile of lumber was likely to frighten horses, by evidence that horses passing it were frightened by it. The absence of the parties to the suit when a particular horse was frightened was unimportant. The character of the lumber pile was not affected by that circumstance. See, also, Cook v. New Durham, 64 N.H. 419.

In Whittier v. Franklin, 46 N.H. 23, the vicious character the plaintiff's horse was shown by evidence of specific acts of viciousness, some of which were not known by the plaintiff. In Judd v. Claremont,66 N.H. 418, it was held that evidence that a horse driven by a highway traveler had previously stumbled is competent in an action for damages from a defective highway, without proof that the fact was brought to his knowledge, when it also appears that he had opportunities for becoming informed to the suitableness of the horse. These, and many other authorities that might be cited, illustrate the general principle that the existence of a particular trait or characteristic in inanimate objects or animals may be proved by instances of its manifestation. If the question is whether a person has the habit of becoming intoxicated, proof that he was frequently in that condition would seem to be specially apt and material, and would tend to prove that his near relatives and associates might have the opinion that he possessed that habit. Cummings v. Nichols, 13 N.H. 420,428. The principle is well stated in Whittier v. Franklin, supra (p. 26): "The instructions to the jury as to the proof of the habits of the horse, we think were correct. It was admissible to show that the horse was vicious and unsuitable to use for such purposes, and that might be done by proof of acts not brought to the knowledge of the plaintiff, because it is not the knowledge of the particular acts that was to be brought to his notice, but of the character which those acts denote. It would, therefore, be sufficient, after showing his vicious character, to prove notice by plaintiff's admissions, and by similar acts in his presence."

Upon the issue whether Merrill believed that his niece had irritable disposition, the fact that she had exhibited the outward manifestations of such a disposition to others would seem to be especially relevant and admissible in proof, when coupled with evidence of his declaration that he had such a belief, presumably based upon his observation of her. 1 Wig. Ev., s. 208. Suppose the defendant were an insane person, and her conduct toward her associates and neighbors had been such as to put them in fear of personal violence: it is not easy to explain, on logical grounds, why specific instances of that character would not be admissible evidence to show that her uncle, who had known her intimately during the period of her insanity, feared her, or that testimony that he had said he feared her was probably true. The moral quality of her conduct, as good or bad, does not affect the question of its relevancy to the fact to be proved. Evidence that she is insanely or unreasonably violent in her actions, when shown by a sufficient number of specific instances, logically proves the fact. It is not made plainer, or more obscure, by a consideration of her moral accountability or of the fact that it is not proved by opinion evidence of general reputation. The question is, not whether she has a good or bad reputation in the community where she lives, but whether she actually has a particular trait which manifests itself in acts of violence. If she does have that trait, there is a natural presumption of fact that her uncle, who had long known her, entertained the idea that she was a woman violent temper. It shows that such an idea on his part was at least reasonable, and tends to substantiate the testimony that he said she was always in trouble. If the issue had been whether he thought she was benevolent or affectionate, the moral quality of her acts indicating such a character would not furnish a test of their admissibility, nor would his actual knowledge of their occurrence be essential.

Whatever rules are applied in the admission of character evidence for the purpose of impeachment (Sargent v. Wilson, 59 N.H. 396), or for the purpose of showing reputation merely (State v. Forshner, 43 N.H. 89), they are not necessarily applicable to exclude specific instances of one's exhibition of violent action, introduced for the purpose of showing that another probably entertained the idea that the former had a violent temper during their long and intimate acquaintance. Nor when used for this purpose can the evidence be excluded on the ground that its admission would authorize the inference that the defendant committed the wrong or crime charged in the suit, from the fact of her having previously done a similar wrong. State v. Lapage,57 N.H. 245. The evidence showed merely that on several occasions she had exhibited a violent temper; and it logically follows that her uncle was likely to think she was quarrelsome. That was the natural bearing of the evidence. Whether, if he had that idea, it was in fact correct, and whether upon full investigation it would be found that she did have a violent temper, do not seem to be questions of importance in this case. To show that he might reasonably think she had that character, instances of its exhibition were competent; for the jury might reasonably infer that Merrill had often seen similar instances of excitement on her part, and that to a man of his temperament they would indicate a violent temper, which, as the testimony showed, he disliked. If she was excitable and unreasonable or quarrelsome in her relations with the members of her own family and with her neighbors, — if that was her temperament or disposition when her uncle was not present, — it would be natural to expect her conduct in his presence, or within the range of his observation, would not be materially different. The general characteristics of people do not suffer sudden and radical changes.

Whether the evidence of the defendant's exhibition of temper was too remote to be of use to the jury presents a question of fact determinable by the trial court. The admission of the evidence was based upon a finding by the court that, if competent and relevant, it might assist the jury, though relating to matters somewhat removed in point of time from the principal fact in issue. Ordinarily, the exercise of discretion is not reviewed on exception. Cook v. New Durham, 64 N.H. 419; Beckman v. Souther,68 N.H. 381. Nor is the evidence objectionable as a matter of law because it relates to the events occurring after the principal event or transaction. The defendant's disposition to quarrel after the contract in suit was made, or after her uncle told the witness he disliked her, was as competent as her previous disposition would have been. Chamberlain v. Enfield, 43 N.H. 356, 360. "A man's trait or disposition a month or a year after a certain date is as evidential of his trait on that date as his nature a month or a year before that date, because character is a more or less permanent quality, and we may make inferences from it either forward or backward." 2 Wig. Ev., s. 1618.

The defendant's claim that the Ward letter was improperly received in evidence, and constituted error on account of which the verdict should be set aside, cannot be sustained. It does not appear how the contents of the letter tended to disparage the credibility of the defendant. She merely insisted that her tenant should refrain from doing certain things which she understood he had no right to do; and in this view the letter was not prejudicial so far as her credibility was concerned. Its admission for that purpose, therefore, was harmless error. But so far as the letter showed that she was unreasonably insistent upon her rights as she conceived them to be, and that she was illustrating her alleged character for quarrelsomeness by seeking trouble with her tenant, it was competent for the reasons above considered. That it might have that tendency under the circumstances cannot be doubted. If the admission of the letter to impeach the defendant's veracity as a witness was harmless error, and if it had a legitimate bearing upon the question of her quarrelsomeness, for which purpose it was also admitted, manifestly no reversible error was committed by permitting the letter to be read in evidence.

The exception to the hypothetical question addressed to the expert cannot be sustained. The record shows that the ground of the objection was that the question required the witness to pass upon the issue which it was the province of the jury to determine. After assuming that a man exhibits certain peculiarities, the question required the witness to give his opinion "as to the capabilities of that individual to transact business that requires the use of judgment." The reply was, "I should say that that person would not have the capacity to transact business in a way that you have mentioned." The inquiry related to the mental capacity of such a person to do acts requiring judgment and discretion. It did not call for expert opinion as to his ability to make a contract which would be binding in law — a position which seems to be taken by the defendant. It called for the witness' opinion as to the fact of the ability of the supposed person to exercise a reasonable or ordinary judgment in the business affairs of life. The further question, whether, if he lacked that ability, he could or could not make a valid contract, was not submitted to the witness, and he did not answer it. To say that the expert told the jury, in effect, that Merrill did not have the legal capacity to make a binding contract, is to misinterpret the testimony reported in the case and to substitute fancy for fact.

It is further urged that the question assumed facts relating to mental unsoundness which were not justified by the evidence, and that the question should have been excluded for that reason. If this contention is sound, the fact that it was not taken at the trial, where the alleged defect might have been obviated, precludes the defendant from now insisting upon it. The first objection to the question was the one considered in the preceding paragraph. The second was general in its character and did not call the attention of the court to the alleged defect that is now suggested for the first time. Under such circumstances justice requires that the defendant should not be allowed to insist upon the objection. Carter v. Beals,44 N.H. 408; Reagan v. Railway, 72 N.H. 298; Gendron v. St. Pierre,73 N.H. 419.

The defendant took several exceptions to the charge and to the refusal of the court to incorporate certain requests in the instructions. One point thus presented is, in the language used in the defendant's brief, that the jury were in effect instructed that "if they thought the transaction unjust and unreasonable, they could from that fact alone find unsoundness of mind, or undue influence, or both." This is an inference based upon a single sentence in the charge, which is as follows: "If the donation is unjust or unreasonable, that fact is evidence for you to consider upon the issues of sanity and undue influence, but it is not of itself a cause for revising what has been done, unless it is of such an extent as to convince you of the existence of undue influence or an unsound mind." It is admitted that in various forms of language, employed both before and after the sentence above quoted, the court instructed the jury correctly on this point. They were told that one in disposing of his property has a right to "disregard all natural ties and every idea of moral obligation, and still be within his legal rights"; that "the right to dispose of one's property is not dependent upon the condition that the gift shall be reasonable"; that "this transaction here in question is such a one as he [Merrill] could lawfully enter into if he saw fit. And so you will at once dismiss from your minds any idea that this transfer may be set aside merely because it gives one niece a large part of his estate, and address yourselves solely to the task of ascertaining whether this gift or contract was his in fact and in law." Upon a reasonable construction of the charge, it seems plain that the court did not intend to say, and that the jury could not understand they were told, that if they thought the contract unreasonable they might from that fact alone find insanity or undue influence. That the injustice and unreasonableness of the transaction is competent evidence on those issues is conceded in argument; but it is the special unreasonableness found to exist under all the circumstances of the case relating to Merrill in his disposition of his property, and not what the jurors might think would be unreasonable for men in general to do under like circumstances, that was intended in the sentence quoted from the charge. In view of his purposes, peculiarities, prejudices, and other special considerations influencing his conduct as a sane and free moral agent, one question for the jury would be whether the transaction in question was reasonable; that is, whether it was naturally to be expected, or whether it was so in conflict with his known disposition and purposes as to be unnatural and unexplainable, or unjust and unreasonable, from his point of view when sane and subject to no undue influence. If the single remark of which complaint is made is susceptible of the construction given it by the defendant, and if that statement of the law is incorrect, it does not follow that the jury disregarded the other parts of the charge bearing on the same subject and rendered their verdict because of the erroneous remark. It does not plainly appear that they were misled thereby, or that they were likely to adopt the erroneous construction suggested. "Taken as a whole," it is not apparent "that the charge was very liable to lead the jury to this erroneous conclusion." Cohn v. Saidel, 71 N.H. 558, 571; Lord v. Lord, 58 N.H. 7, 11; Cooper v. Railway, 49 N.H. 209.

The court further instructed the jury, that "to be of sound mind within the meaning of the law and for the purposes of this transaction, he [Merrill] must have had a sufficient mental power to understand the nature and extent of his property, who his relatives were, and what reasonable claims, if any, they had upon his bounty"; that "if his mind was . . . practically gone, if . . . he was incapable of consecutive thought, or if he could not think at all except as some one matter was sharply thrust upon his attention, . . . then he had not the mental capacity which is required"; and that "to sum it all up in a few words: Did he know what he was about? That is the essence of the test of sanity: Did he know what he was about?" It is objected that if this instruction is correct in determining a testator's capacity in disposing of his property, it is not applicable when the question of capacity relates to a contract, as in this case. But one theory of the plaintiff's case was, that though the transaction took the form contract, which was executed, it was in effect a disposition of large part of Merrill's estate in view of his great age and approaching death. In this view, the instructions were correct.

It is believed that the foregoing substantially covers all the numerous exceptions argued by the defendant; and as no error is found, the order must be,

Exceptions overruled: judgment on the verdict.

All concurred.