Davis v. Parsons

This action was brought by Carlyle 0. Davis, plaintiff, against his daughter, Nellie Madelein Davis, and against the trustees under the will of Martha Ellen Davis,

A review of the evidence is made necessary by reason of the fact that the principal contention upon appeal is that it does not support the findings of the court. The necessity of the review in this case is the more unfortunate, not only because of the relationship existing between the plaintiff and the principal defendant, but because as appears from the

Plaintiff, his former wife Martha Ellen Davis, and their one child, the defendant Nellie Madelein Davis, lived for many years in Colorado. The plaintiff was the proprietor of two daily newspapers in Leadville. At the time of the trial the plaintiff was over sixty years of age and his daughter thirty-six years of age. The plaintiff had been in ill health for a number of years. Differences had arisen between himself and the mother of . defendant which led to their separation and ultimately to their divorce. As an outgrowth of these differences and in the settlement of the property rights, plaintiff made over to his wife these insurance policies fully paid up. After the divorce the husband married again and with his second wife came to California. In 1906 the divorced, wife died, leaving, as has been said, her property to trustees in trust for her daughter. That the plaintiff had been a most ldnd and indulgent father to his daughter is abundantly established even from the lips of the daughter herself. She had been educated at home and abroad, studied for three years in an art school in Paris, spoke French and German, and upon her return from abroad entered a dramatic school in New York and went on the stage. In 1895, when her father was ill, she took charge of his two daily newspapers at Leadville, remaining there in charge until 1896, for a period of nearly a year. Then, upon five thousand dollars being given her by her father, she returned to New York and engaged in the business of furnishing musical, literary, and other entertainment for social functions. But (this, however, appearing by inference and intimation rather than by direct proof) the daughter fell into evil ways and into dissolute habits. She led, or was willing to lead, an immoral life. She smoked and drank alcoholic liquors to excess. Thus, in a letter, one of the trustees, Mr. Parsons, wrote to her upon October 8, 1906, as follows: “You must realize that your life during the past eight years with its history of hospitals, sanitariums, etc., is anything but safe, secure, or dignified. It caused your mother unutterable woe. I have seen upon her face expressions of intense agony, of unutterable grief, when speaking of you. I have no doubt

In 1906 plaintiff, with his present wife, Mrs. Mollie Davis, was living upon a tract of land which he had purchased near San Gabriel in Los Angeles County. While there they learned from her letter that defendant was in a sanitarium in San Diego. The wife of plaintiff went to San Diego and, upon the promise of the daughter to reform, to cease smoking and the use of alcoholic stimulants, Mrs. Davis took her to her father’s home. Thus, on the last of October or the first of November, 1906, the daughter was received into her father’s household. Two or three days afterward, that is to say, upon November 3, the daughter executed, in consideration of love and affection, the assignments to her father of the insurance policies. Of the circumstances connected with and attending these assignments, the plaintiff declares that, though sick and enfeebled, he was by stress of poverty compelled to do manual labor on his home place; that he was so engaged in painting his barn when his daughter came to him, saying that it was too bad that he was forced to do such work at his age, and that she was going to transfer to him the insurance policies which he had given her mother, voicing the hope that he could realize enough money from these policies to make his old age more easy and comfortable. Plaintiff expressed his gratitude to his daughter and told her that he was not physically able to do the work he was compelled to perform; that her proposition was most generous, and that if she carried it out it would enable him to pay his debts and employ some one to do the hard work on his little ranch. At no time did he or did his wife ever suggest to the daughter t'he assignment of the policies. On November 3d plaintiff had further conversation with his daughter. He was then preparing to go to Los An

The daughter’s story is that she never saw her father painting a barn; that she never suggested giving him the policies, but that he said to her that he had paid all the money on the policies and that they really belonged to him. She never volunteered to make an assignment of them to her father, but to the cotitrary, her father represented that “he had so much property in Los Angeles and he had that beautiful ranch—• I have forgotten how much it was worth—how many thousand dollars”; that upon the 3d of November when her father was in Los Angeles she had a serious quarrel with her stepmother who threatened to have her confined as an insane person; that she tried to telephone to get an express wagon to remove her things out of the house and her stepmother struck-her and took the telephone from her. Then, in the afternoon when her father, Mr. Parsons and Mr. Johnson arrived, her father took her in the bathroom and told her he was terribly in debt; that the place was mortgaged; that the insurance policies were of no value to her and that if she would make them over to him he would leave her out of his estate as much money, or more, as their value to him; that while he was much harassed by debts at present, in a few years his property would increase enormously in value. “Then we went out into the other room, or we went through the living room and out through

The appellant insists that the evidence of defendant is not inconsistent with the proofs offered by plaintiff, apd that -in many particulars it is so incoherent and inconsistent with itself that it is not entitled to such credit that a reviewing court will say that it raises a conflict. But here again, drawing the inferences from that evidence which the trial court must have drawn, and with the advantage which the trial court possessed of having the witnesses before it, it seems reasonable to say that these very inconsistencies and incoherencies give evidence of a mind or of a state of mind on the part of the defendant justifying the trial court in withholding its approval of the validity of the assignments. Thus, it matters not if Miss Davis’s life was not endangered, if by reason of her mental debility and the nervousness following her protracted period of alcoholism, she believed it to be in danger; it matters not if she entertained hallucinations not produced by the conduct of her father or stepmother. If, in fact, she did entertain them, and through fear of them, however groundless, executed the assignments, it was not the free and voluntary act of a disposing mind. Such we conclude must have been the view which the trial court took of this evidence, and in this view the question of the confidential relation between parent and child enters very little, if at all. By this is meant that such confidential relation need not be established as the

A subsequent ratification of the assignments is asserted by plaintiff. This ratification springs from the fact that the daughter resided with her father for some months after the execution and repeatedly wrote to the trustees in terms confirming the assignments, in some instances the confirmation being outright, in others conditional. The conditions in one letter, for example, being that the trustees should continue to pay her fifty dollars a month and should turn pver to her her mother’s jewels. In another the confirmation was based upon the condition that her father and his wife should execute to her some sort of an agreement whereby she should receive the amount of the policies from their estates upon the death of the last survivor. But as to these letters it is shown that they were inspired by the father and in some instances wholly typewritten by him, the daughter doing nothing more than signing her name. True, the father says that the letters were the free act of the daughter and were merely typewritten by him after consultation with her and confirmation by her of their substance. But the daughter’s answer is still the same, that she was under her father’s roof, under his absolute domination and control, that the trustees did not even pay her monthly fifty dollars to her, but paid it to her father so that she was penniless, and she simply signed whatever she was asked to

Numerous exceptions were taken to the rulings of the court admitting and rejecting evidence. The first of these groups is the refusal of the court to strike out voluntary statements of the witness Nellie Davis. It has been said before that the testimony of Nellie Davis was rambling, in some respects contradictory, in others absolutely incoherent. Appellant asserts that the most glaring of these errors, and it will serve for a type of all, is the following: Shown a typewritten letter signed by herself the court asks “What is the date of thiq letter?” Mr. Kemp of counsel for appellant replies, “June 21, 1907,” when the witness interjects: “Tour Honor, I never composed that, and I doubt if I ever wrote it, and yet the signature is mine.” The court refused to strike this out. True, it was voluntary. True, it was not in response to any question, but it was perfectly permissible evidence, if questions soliciting it had been asked; and the refusal of the court to strike out the volunteered matter was but a time-saving-device, since unquestionably the same evidence would have been adduced under direct question and answer if it had been stricken out.

The second group of exceptions is predicated upon the court’s admission of the testimony of Nellie Davis concerning quarrels between herself and her stepmother, Mollie Davis. It may be well to quote this. Miss Davis is constantly asking the court if she may tell her story. Asked if Mrs. Davis ever said anything to her about the policies, she says, “May I tell what she said? Q. No, not unless it is in reference to the assignment of the policies. A. May I say it? The Court: Tes, go on. A. She says ‘If you don’t do what you are told tonight Mr. Parsons will fix you, and if he don’t I will.’ And I said ‘Ton cannot do a thing to me, because I have never done anything that you could do anything for.’ I was mad and I didn’t need to talk like that—

“This was previous to the telephone incident. She said she had doctors that would swear things and she said ‘if you land in an insane asylum in California, you will'not get out of it,’ and she said that Dr. Horn said ‘there was nothing the matter with me physically and I was not affected and that I

The third alleged error is in admitting evidence offered by Miss Davis of occurrences in Leadville. The occurrences seemed to be the beginning of the marital differences between the plaintiff and his first wife and involved the stepmother, the present Mrs. Davis, who was at that time Mr. Davis’s nurse. This evidence of itself amounted to nothing. It was simply a declaration by. the daughter that the present wife exercised great control over the husband and the conclusion of the witness that father “would not have treated me that way if it had not been for her. ’ ’ That there had been differences was not in question and the representation of Mr. Kemp, of counsel for appellant, was- an invitation to the court to rule precisely as it did, he saying: “If the court wants to go into that proposition we would be very glad to go into it. We have not a thing to conceal as far as the relations of Mr. Davis’s present wife are concerned.” Here to insist that the admission of the evidence thus invited is prejudicial error is somewhat inconsistent.

The next alleged errors were where the court permitted the witness Nellie Davis to refuse to answer certain questions. These questions were addressed to her mode of life and her vocations in the cities of Chicago and Boston. The ruling of the court was simply that if the answers tended unneces

The next group of exceptions is addressed to the admission of the testimony of Maria McNally given by deposition. Maria McNally had been a household servant of the Davises and came to California to live with Nellie Davis after the latter had left her father’s roof. An example of these objections is the following: Nellie Davis was living in her own bungalow built for her by the trustees near to her.father’s place. The trustees were still paying the money for the support of Nellie Davis to her father and not directly to her. She was obliged to visit her father’s house upon her business affairs in the matter of her bills.' The witness testifies -to her frequent nervous and crying spells after returning from her father’s house and that the troubles of Nellie Davis seemed to have followed these visits. She is then asked: “Q. You never heard Nellie and her father talking about the insurance policy? A. No, sir. I did not. Q. Had you never heard him make any complaint about the size of her bills ? A. The grocery bills ? Q. Yes. A. I certainly did,—I did not hear him, because I was not there. I heard it from Nellie after she would come back. Q. All you Imow is what Nellie told you ? A. All I know is what Nellie told me. Q. How frequently did she go over to her father’s house? A. I do not think she ever went there except on business, and when she got her allowance she did not go over there at all. She went there when she had to go. Q. Did he give her the money, or pay her bills ? A. No, he paid the bills. Q. He paid the tradesmen direct? A. Yes.” The witness seems to have been a candid one. It was competent for her to testify concerning the condition of Nellie Davis upon her return from her father’s home, that she was perturbed and in tears, and the fact that she frankly answers that she was not at Mr. Davis’s house, did not hear the conversation and so could not know the cause of Miss Davis’s distress other than what Miss Davis herself told her, does not render her evidence inadmissible.

A letter was introduced in the handwriting of Nellie Davis and signed by her. This letter is dated in June, 1907, is addressed to Mr. "Walling, attorney for her trustees at Denver,

The court refused admission in evidence of a long typewritten document purporting to be from Nellie Davis to her trustee, Mr. Parsons, the last page of which, however, was in her father’s handwriting. This letter was neither signed by Nellie Davis nor sent. But appellant contends that it contains statements negativing much of her testimony and therefore should have been admitted. It was refused admission in evidence, first, for the reasons indicated, that the letter was not signed by Nellie Davis nor sent to its addressee, and, further, because she testifies—and the letter itself bears internal evidence of the fact—that it was not her free voluntary act, that only some of its expressions were hers and others were those of her father. It was not error therefore for the court to refuse to receive this writing.

The judgment and order appealed from are therefore affirmed.

Melvin, J., and Lorigan, J., concurred.