Cross v. BeckwithAnnotate this Case
238 S.E.2d 130 (1977)
Matthew CROSS (deceased) Franklin L. Rush (Substituted as Plaintiff in lieu of Matthew Cross) v. James W. BECKWITH.
Supreme Court of North Carolina.
August 23, 1977.
*134 Randolph L. Worth and W. C. Harris, Jr., Raleigh, for plaintiff-appellant.
Broughton, Broughton, McConnell & Boxley, P.A., by Charles P. Wilkins and Gregory B. Crampton, Raleigh, for defendant-appellee.
SHARP, Chief Justice:
Plaintiff's appeal presents only the question whether the Court of Appeals erred in holding that the trial judge, in his charge to the jury, misstated the evidence on a material fact to the prejudice of defendant.
The challenged instruction is contained within the bracketed portion of the charge set out below:
"Now, there is evidence in this case, ladies and gentlemen, that in substance tends to showwhat the evidence does show is for you to say alwaysbut in substance the evidence tends to show that on the 6th of June, 1966, Mr. Beckwith came to the home of the Crosses on a Sunday morning while they were listening to church on the radio; that after he had been there for some substantial period of time, I recall his evidence to have been an hour and a half to two hours, but again be guided by your own recollection, a Mr. Kornegay, accompanied by a Mrs. a Miss Ruth Hayner, who was at that time Mr. Kornegay's secretary, and Mr. Kornegay was at that time an attorney at law, that at that time Mr. Kornegay produced three deeds; [that Mr. Beckwith either then or at an earlier time on this same day had told Mr. Cross that if he did not sign the deeds that he would have his wife put in an asylum and would turn him out to root like a hog. Mr. Cross has testified that he signed the document because he didn't think his wife belonged in an asylum; that he knew she was sick; that he felt like he would be less of a man if he permitted that to happen.]"
*135 In due time counsel for defendant objected to the bracketed portion of the foregoing instruction on the ground that there was no evidence tending to show that Beckwith had made any threats to Cross prior to the time Mr. Kornegay produced the deeds, and he requested him to correct his charge in this respect. The request was denied. Judge Bailey, however, again instructed the jury "to consider the evidence only as they recalled it and to disregard any recitation of evidence that conflicted with their own memories."
Since the testimony of Mrs. Hayner, who was the legal secretary who typed the deeds and also the notary public before whom they were acknowledged, contains no reference to any threats by any person at the time of their execution and implicitly negates any such threats, defendant contends that the judge should have required the jury to find that if no threats were made in Mrs. Hayner's presence none were made at all. Such an instruction would, of course, have forced the jury to reject the testimony of either Mrs. Hayner or Cross, whereas the instruction given permitted the jury to avoid this dilemma. Thus defendant contends the judge's asserted misstatement was not harmless because it would reasonably have affected the outcome of the trial.
Were we to adopt defendant's premise we would also adopt his conclusion. See In re Taylor, 260 N.C. 232, 132 S.E.2d 488 (1963). See also State v. McClain, 282 N.C. 396, 400, 193 S.E.2d 113, 115 (1972). However, in this case, the record evidence is reasonably conducive to the interpretation that the threats, if made, were made before Mr. Kornegay and Mrs. Hayner arrived at the Crosses' home.
Defendant testified that he had been at the Cross home on 5 June 1966 "for maybe an hour, two hours, something like that," before Kornegay and Mrs. Hayner arrived. The record does not disclose what he did or might have said to the Crosses during this time. The testimony of Matthew Cross was confused. The old man frequently expressed uncertainty as to times and dates. His testimony is clear and positive only as to these things: (1) Beckwith arrived at his home on the Sunday morning the deeds were signed at a time when he and his wife were listening to a church service on the radio; (2) Beckwith threatened to put Maggie in the asylum and turn him out to root like a hog if he did not sign "the papers," and (3) he signed them only because Beckwith made these threats. Thus, his testimony, if the jury found it to be credible, would support a finding that Beckwith threatened Cross either at the time of signing or at some earlier time on the same day. Since Beckwith arrived from one to two hours before Mrs. Hayner, who testified that no threats were made while she was present, the evidence reasonably supports an inference that the threats, if made, were made before she arrived. We hold that there was no error in the judge's recapitulation of the evidence and that the Court of Appeals was in error in ordering a third trial.
Defendant brings forward for review the nine assignments of error discussed in his brief filed in the Court of Appeals. By assignments of error Nos. 1, 4, 5, 10 and 12 he challenges as irrelevant and prejudicial the admission of evidence tending to show the physical and mental condition of Maggie Cross, whose death in 1972 removed her as a party to the action; evidence as to the Crosses' mental and physical condition after 5 June 1966; and evidence that Beckwith gave them no assistance after 1967.
Evidence "is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions." Bank v. Stack, 179 N.C. 514, 516, 103 S.E. 6, 7 (1920). Accord, State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973). "Testimony is relevant if it reasonably tends to establish the probability or improbability of a fact in issue." State ex rel. Freeman v. Ponder, 234 N.C. 294, 304, 67 S.E.2d 292, 300 (1951). Applying these principles, we hold that the challenged evidence was properly admitted.
The two issues submitted to the jury in this case were whether defendant *136 procured Cross's signature to the three deeds by (1) fraud and undue influence or (2) by duress. Ordinarily, the complete circumstances surrounding a transaction in which these particular wrongs are alleged are relevant upon the right of a party to avoid the transaction. Thus, the mental and physical condition of each of the Crosses on 5 June 1966 bore directly upon their ability to withstand the unfair tactics, threats, or blandishments of a stronger will. See Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). Maggie's mental condition also bore upon Beckwith's alleged threat to place her in an asylum, and the probable reaction of a devoted, albeit ignorant and senile, husband to the threat "to put her away."
Likewise, evidence which tended to show that after 1966 defendant did not assist or care for the Crosses despite their obvious need was relevant to the inquiry whether he obtained their deeds by fraud, undue influence, or duress. "Subsequent acts and conduct are competent on the issue of original intent and purpose." Early v. Eley, 243 N.C. 695, 701, 91 S.E.2d 919, 923 (1956). One of the allegations upon which the original plaintiffs based their right to rescission was that defendant, knowing their feeble physical condition and mental deterioration, had procured their signatures to the deeds by fraudulently promising he would rent their land for them, look after all their affairs as their trustee, and care for them the remainder of their lives.
Beckwith testified that on 10 February 1966, when he and the Crosses were negotiating, he promised to "assist them in any and everything that they couldn't do. . . I promised to look after them, and I did just that, up to `68. . . ." He also testified that his promise was the consideration which supported the conveyances to him. Cross's testimony that defendant never rendered any assistance to him and Maggie, and defendant's testimony that he never provided any assistance or care after 1967, "reasonably tends to establish the probability" that defendant, a resident of Baltimore, never intended to support, maintain, and care for the Crosses, his elderly collateral kin who lived 300 miles from Baltimore and who, in natural course, would need infinite personal care and medical attention for the remainder of their lives.
As defendant points out, the evidence tending to show the sad plight of this disabled elderly couple, whose assetsthe fruits of an industrious lifewere sufficient to care for them adequately until the end if properly administered, was likely to touch the hearts of the jurors. However, "relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it." State v. Wall, 243 N.C. 238, 242, 90 S.E.2d 383, 386 (1955). Finally, since it was not error to admit this evidence, it was certainly not error for the judge to mention it in his recapitulation.
Defendant's assignments Nos. 1, 4, 5, 10 and 12 are overruled.
By assignment No. 3 defendant asserts that the trial judge abused his discretion in permitting plaintiff's counsel to ask Cross a number of leading questions. Counsel concedes, however, that it is within the sound discretion of the trial judge to determine when counsel shall be permitted to ask leading questions. Ordinarily the court will permit leading questions when the witness "has difficulty in understanding the question because of immaturity, age, infirmity or ignorance." State v. Greene, 285 N.C. 482, 492, 206 S.E.2d 229, 236 (1974). On this record we find no abuse of judicial discretion in the rulings here challenged. Assignment of error No. 3 is overruled.
Of defendant's three remaining assignments of error, the two which relate to the charge (Nos. 13 and 14) are entirely without merit and require no discussion. The other (No. 6) challenges three questions on cross-examination which were intended to elicit from defendant an admission that he knew from a deposition which Maggie had made that she had corroborated the testimony of Cross and that he likewise knew in 1969 or 1970 that the status of her property was "driving her crazy." These *137 questions, as framed, assumed facts not supported by any evidence in the case and were, therefore, improper. The judge erred in not sustaining defendant's objections to them. However, in his answers defendant himself pointed out the inherent defect in the questions and emphatically denied the implications they contained. We cannot believe that these questions had any appreciable impact on the trial or that there is a reasonable probability that they influenced the verdict. The error, therefore, was harmless. Wilson v. Suncrest Lumber Co., 186 N.C. 56, 118 S.E. 797 (1923).
On the evidence a jury might have decided this case "either way." However, two juries have decided it the same way. In the second trial we find no error of law entitling defendant to a third trial. Accordingly, the decision of the Court of Appeals is reversed. The cause will be remanded to the Superior Court of Wake County with directions to enter judgment for the substitute plaintiff upon the verdict rendered.
Reversed and Remanded.