1. No objection having been urged by the propounders at the time, there is no merit in the insistence that the court erred in disqualifying four jurors on voir dire.
2. There is no merit in the contention that, even in the absence of a motion for mistrial, the imposition of a fine on one of the propounders, while she was testifying, on account of improper remarks which she made to an attorney for the caveator, was prejudicial and required a new trial.
3. The contention of the propounders that the court erred in permitting an accountant to testify regarding a recasting of accounts is not cause for reversal where, as here, substantially the same facts as to what a recasting of the accounts would show was contained in a copy of a suit which was introduced in evidence by the propounders.
4. A caveator is entitled to prove everything he alleges in his caveat upon which he is permitted to go to trial without objection on the part of the propounders.
5. The hypothetical question propounded to an expert witness in the present case was not subject to the objection that it was a conclusion.
6. The contention that the court, without any request, should have defined circumstantial evidence, and instructed the jury further on that subject, is without merit.
One phase of this litigation was before the Supreme Court in Adler v. Leopold Adler Co., 205 Ga. 818 (55 S. E. 2d, 139).
Leopold Adler executed his will on December 2, 1944, to which three codicils were added respectively on February 2, 1946, April 24, 1947, and May 9, 1947. He died on January 13, 1948. In item 9 of the will he devised the residue of his estate to be held in trust for his five children, Rena Frank, Elsie Ackerland, Olga H. Adler, Sam G. Adler, and Melvin L. Adler, share and share alike. The child or children of any deceased child were to stand in the place of the parent and take per stirpes. The codicil dated April 24, 1947, except for a small bequest to grandchildren, disinherited Melvin L. Adler and his two boys. Olga H. Adler and the Savannah Bank & Trust Company, as executors, filed for probate in solemn form the will and the three codicils thereto. Melvin L. Adler filed a caveat on the grounds of undue influence and fraud, and objected to the probate in so far as the codicil dated April 24, 1947, was concerned, and in so far as the codicil dated May 9, 1947, was a republication of the codicil dated April 24, 1947. The will together with the codicils was admitted to probate, and the caveator appealed the case to the superior court.
The, codicil executed April 24, 1947, states that the caveator was disinherited because on March 17, 1947, he brought a suit against the testator.
When the issues came on for trial, -- the caveator admitted a prima facie case in favor of the propounders in order to obtain the opening and concluding arguments.
Dr. Harry Y. Righton, sworn for the caveator, testified substantially as follows: The witness treated Mr. Adler in 1939 for prostate-gland trouble following a cerebral hemorrhage. At that time he had some pressure symptoms "in both leg, arm, face and tongue." The leg and arm had cleared up to a large extent, but he still showed evidence of some facial paralysis, as well as paralysis of his tongue. His tongue was thick and his mouth had fallen a little bit. He had a rubber tube in the bladder that had to be dressed and kept clean. This was done by Olga who had every influence over him. He would receive dictation from her but he would not listen to anybody else. Any person having a hemorrhage of the brain is prone to extreme excitement; and if he has anything exciting on a subject he is antagonistic to, he probably will not use the same reasoning powers as a man who has not had a hemorrhage. When senility is conjoined in a man of 86 to a brain hemorrhage, his ability to distinguish the merits of anything will depend entirely upon what subject is approached. At times he will be just as reasonable. Again, if a matter comes up that arouses or angers him, he will naturally not be in a position to decide what is right or wrong. If such a man should be controlled by someone, who saw him to the exclusion of almost everybody else, he would naturally be guided and influenced by the person he was dependent upon. It is a very common symptom of advanced senility that the senile person falls out with those who were once dear to him.
Prior to 1943, Sam G. Adler was vice-president and general-merchandise manager of Leopold Adler Company. His salary was $10,000 a year and 1/3 of the profits. Melvin L. Adler, the caveator, was also vice-president and merchandise manager and took care of the superintendent's duties. His salary was $8,000 a year and 1/3 of the profits. Prior to 1942, Leopold Adler told Sam many times that he was only keeping the business for his two sons and that his will so provided, and that it gave them an opportunity to purchase the business over a period of 10 years. At this time the relationship between Melvin and his father was most affectionate. Melvin visited his mother and father in their home on an average of two to three times a week. He religiously went on Friday night, which was a Jewish family night. This affectionate relationship continued until 1943. Melvin was a veteran of World War I and World War II. Right after Pearl Harbor he, after talking it over with his parents and apparently receiving their consent, volunteered for the American Field Ambulance Service and went to Egypt. His mother died in January, 1942, shortly after he sailed. There was a difference in the relationship between Melvin and his father from the time his mother passed away. Olga, who except for the servants lived alone with her father during this period, said, "Melvin caused mother's death; Melvin murdered mother," until her father believed it. In making these accusations, at the time her father was grief-stricken, she was driving a wedge and prejudicing and influencing her father against Melvin.
Within two or three weeks after the death of their mother, when Mr. Adler's children and their families called at his home, a servant came to the door and said, "Wait a minute. I will have to let you know." She would come back and either tell them that Mr. Adler was not feeling well or was resting or could not see them that day, and on occasions they were told to come in. It was a change in the informal relationship that had always existed. Olga told members of the family that she had given those instructions to the servants, and said, "Furthermore, don't come in the future without calling up and getting permission." Other members of the family were shocked because this was so foreign to what had gone on before. They did not remonstrate with their father about that condition, because they saw that Olga was the controlling factor and knew it would only upset their father. After 1942 when their father's friends of long standing, knowing his advanced age and that he liked company, dropped in to see him at the store, Olga would sit there as if they could not be trusted alone. Sometimes they had intimate business to take up, but she sat there. This gradually weaned away a lot of their father's friends. Up until 1942 Olga had no position with the company, but after her mother's death she antagonized and bullied the department managers and buyers. Shortly after January, 1944, Melvin came back in the store. Olga belittled his work. She told their father that Melvin and Sam were ignoring him in many details of the business. On January 6, 1945, a contract was entered into between Melvin and Sam on the one hand and Mr. Adler and the Adler Company on the other with reference to the assumption by the sons of certain tax liabilities. Melvin refused to sign until he was assured that his contract with the company, which could be terminated on 90 days' notice, would be continued. He and Sam were discharged from the store on July 31, 1945. Olga secured the discharge of Melvin and Sam in order to gain control of the business. Between 1943 and 1945 their father was not making any decisions. Any decisions made were Olga's. For three or four years before his death, physically he was alive, but his mind and soul were hers. The last time Sam saw his father was in March or April, 1946. At that time his physical condition had deteriorated. He was much thinner, much weaker, and barely shuffled along. He was 84 or 85 years old and his mental condition was bad. He would sit and stare. He would break down and weep at times. He had been doing that since he had a cerebral hemorrhage in 1939. He was not acting with independent thoughts. He was virtually a prisoner. Olga sat there and it was apparent that she controlled his thoughts. She had nursed her father from the time he underwent a prostate-gland operation, changed a tube that was inserted just below his navel, and he became wholly dependent upon her. In November, 1946, Sam came home especially to tell his father goodbye before going overseas, but Olga would not permit him to do so. Their father would not have disinherited Melvin and the latter's two boys, if he had been expressing his own wish and will. The codicil disinheriting them was the will of Olga.
John Worth was employed as advertising and sales-promotion manager of the Adler Company from 1933 to 1945. Melvin and Sam actually ran the entire business. Prior to Mrs. Adler's death in 1942, Olga had no active part in the running of the business. After Mrs. Adler's death, she gradually took over more and more, and was constantly at her father's side. She never permitted anybody to see him without her consent. Late in 1943, Mr. Adler asked John Worth to join him in a game of pinochle, after which they played two or three times a month. One Sunday in 1944, Melvin's and Sam's names came into the picture, and John Worth put in a good word for them. Olga walked in while that discussion was on. Worth was never invited to play pinochle again. On one occasion Worth was discussing some nylon stockings with Mr. Adler. Olga entered the conversation, and Mr. Adler told her to keep quiet. He said: "For account of you my boys would have still been here, and I wouldn't have to run around and worry about these details." In 1944 or 1945 all orders were coming from Olga. On one occasion Mr. Adler showed Worth a letter he had received, and he wanted some explanation; Worth gave it to him, and he listened and put the letter down. About 15 minutes later he picked it up again and asked Worth to explain what the letter was about. It was the identical letter. Worth explained it again, and it happened the third time. Mr. Adler would look up in a dazed fashion and looked down and he didn't say anything. Mr. Adler seldom spoke to anyone in the store. He was absolutely dominated by Olga. Mr. Adler saw Worth once when he was alone, and asked Worth if he was a notary public. Worth said "No." Mr. Adler said to go out and become one because he wanted to sign certain papers, but not to mention a word of it to anybody. Worth became a notary public, but shortly thereafter he could never get to see Mr. Adler.
Dominic G. Paris bad the beauty shop at Adler's from 1929 to 1948, and until April before Mr. Adler died used to shave him once or twice a week. Whatever Olga said, that was law. She practically ran the place for the last two or three years of his life.
Mrs. C. E. Tabb operated a luncheonette at Adler's from 1943 to 1945. Olga never let anyone see Mr. Adler alone. When Mrs. Tabb tried to communicate with Mr. Adler about the loss of some space around the luncheonette, she called his office. Olga answered the telephone and would not let her talk with him. When told she wanted to talk about the lost space, Olga said, "Well, it is definitely going to stay as it is."
Inez McClenehan operated an elevator at Adler's for over fourteen years and left there in 1946. She was present during a conversation between Mr. Adler and Olga in the last of 1944 or the first of 1945, when Mr. Adler said very plainly, "You are just trying to make me fall out with my children."
Mrs. Niwana S. King was employed as office clerk and credit manager at Adler's from January, 1942, until October, 1946. At first Mr. Adler was very positive. He was a very emotional man, of a nervous temperament. After Olga came to the store, she was his constant companion. People did not have as free access to him as previously. Everything went through Olga. In the latter part of his life he was much weaker. In walking he was usually assisted and he kind of shuffled along.
Elizabeth G. Cannon was employed at Adler's from August, 1939, until May, 1949. In 1946 she went to the office to discuss a raise. Mr. Adler took no part in the conversation. He was sitting there sort of drowsy. Olga said, "Papa, this is Mrs. Cannon in the furniture department," but he did not seem to remember her. The next day when Mrs. Cannon went in the office, Mr. Adler got up and took a few steps. Olga pulled him back and sat him down. He was mad about it and was mumbling. He was very feeble, and did not seem to understand exactly all that was going on. He walked with a shuffle and he trembled. Olga was always holding his arm.
Mrs. Mazie Ernest was employed in the corset department of Adler's in 1944, but was not working there when the case was tried. On one occasion an old lady came up and said, "Oh, Mr. Adler, I'm so glad to see you." He did not get to answer. Olga pushed him in the elevator as one would push a little child. Again in 1946, when he started home Miss Henderson rushed up with his overcoat. He said: "Damn it; get away from here . . . Can't I ever do a thing without somebody around . . . Nothing but domination, domination, domination." If anybody came up to speak to him, Olga would step between them. He looked very sad about it, but there was nothing he could do. He made no effort to assert his personality. From January to May, 1947, he was getting more feeble all the time. He did not seem to be able to resist Olga.
Mr. Adler was very fond of Eleanor Frank, his first grandchild, but after Olga had a quarrel with Eleanor he practically stopped speaking to his granddaughter.
On one or two occasions when Olga excused herself to answer the telephone or for some other reason, it was pathetic the way Mr. Adler would immediately start asking questions about the boys or something that he wanted to know about, and the minute Olga came back he would shut up like a clam. Mr. Katte, a very good friend of Mr. Adler in New York had two sons, and very often Olga would make some remark to her father concerning his friend having disinherited one or both of his sons.
Melvin L. Adler, the caveator, was stricken with a heart attack in December, 1943. Olga and her father called on him at the hospital. When Mr. Adler asked how he was, Olga said, "Father, I don't believe he had a heart attack; I guess he was just out drunk last night." Several times in 1943 and 1944, Melvin went to his father's house and was told that he was resting, or that he was not feeling well. The next morning after one of the visits when his father arrived at the store, he asked Melvin where he had been. His father was referring to Melvin's absence from the house. Melvin said that his wife "called up and spoke to Olga and said we would like to drop in, and Olga told Sophie that you were tired, that you were going to bed early; he said, 'Nothing of the kind; I was sitting down in the library until 10:30 listening to the radio, thinking you might drop in, and we could call up Uncle Abe (Mr. Guckenheimer) and we could have a game.' " Melvin would not have filed the suit against his father had it not been for the fact that his father was completely dominated by Olga, and Melvin realized that, unless something was done during his father's lifetime, it would be too late.
The jury rendered a verdict in favor of the caveator on the issue as to undue influence. Judgment was duly entered thereon declaring the codicil dated April 24, 1947, to be void, but admitting to probate in solemn form the will and the codicils dated February 2, 1946, and May 9, 1947. The propounders made a motion for new trial, which was amended by the addition of four teen special grounds, and they except to the overruling of that motion.
(After stating the foregoing facts.) 1. Special ground 1 of the amended motion for new trial complains that the court erred in striking four jurors from the panel. Following the initial questions as to relationship, counsel for the caveator suggested that, under the act (Ga. L. 1949, p. 1082), either side had the right to purge the jury by asking them certain questions designed to obtain a fair jury. The Court: "All right, go ahead." Counsel for the caveator then asked, in effect, if named attorneys for the propounder testified, and they were lawyers of the jurors or their employers, if they would be able to render an impartial verdict between the parties in this case? The four jurors in question stood.
Counsel for the propounders: "I would like to ask some questions. You four gentlemen, do you mean to say that, if you believed that the evidence supported the case, . . . [as counsel for caveator contends], you would not find a true verdict, in accordance with what you believed?"
Counsel for the caveator: "I don't think that cures the question; those gentlemen directly in answer to that question said they could not, under the personal circumstances; . . . render an impartial verdict, and I do not think those jurors would be qualified." The Court: "I agree with you."
Other than what is stated above, it does not appear that any objection was made by counsel for the propounders, but it is insisted in the motion for new trial that the ruling by the court disqualifying the four members of the panel was error for stated reasons.
No objection having been urged by the propounders at the time, there is no merit in the ground of their motion for a new trial, complaining that the court erred in striking four jurors from the panel. The propounders by failing to make timely objection, and by thus agreeing in effect to take their chances of obtaining a verdict with these jurors stricken from the panel put upon them, waived their right to complain thereafter on this ground. See, in this connection, Gunter v. State, 19 Ga. App. 772 (2) (92 S. E. 314).
This, being a civil case, is not affected by the decision in Cade v. State, 207 Ga. 135
(60 S. E. 2d, 763), holding that so much of the act of 1949, supra, as purports to apply to criminal cases is unconstitutional.
2. Special ground 12 complains that the court erred in ruling that Olga Adler, one of the propounders, was in contempt of court on account of improper remarks which she made to an attorney for the caveator while she was testifying. It is insisted that, even in the absence of a motion for mistrial, the imposition of a fine, coupled with a threat to put her in jail, was prejudicial and required a new trial.
There is no merit in this contention. In Pulliam v. State, 196 Ga. 782 (6, 7) (28 S. E. 2d, 139), this court held: "Where on the trial the court propounded certain questions to a witness, which examination, it is insisted, was conducted in such manner as to prejudice the rights of plaintiff in error, such action on the part of the court will not cause a reversal, in the absence of any objection having been raised thereto at the time. The decision in Potter v. State, 117 Ga. 693 (45 S. E. 37), on the question of procedure here dealt with, is expressly overruled; and so as to any other case conflicting with the ruling here made." See also 3 Am. Jur. 607, 1057; 64 C. J. 93, 94, and cases cited.
3. Special ground 10 complains that the court erred in permitting Mac H. Barnes, a certified public accountant, to testify regarding a recasting of the accounts of the Adler Company.
The propounders introduced in evidence the suit that the caveator filed against his father, the allegations of which contained substantially the same facts in reference to what a recasting of the accounts would show. In these circumstances the admission of the testimony complained of was not cause for reversal. Heatley v. Long, 135 Ga. 153 (6) (68 S. E. 783); First National Bank of Cornelia v. Kelly, 190 Ga. 603 (3) (10 S. E. 2d, 66).
4. Special grounds 5 and 6 complain that the court erred in permitting a witness for the caveator to testify that prior to 1942 Leopold Adler told him that he was only keeping the business for his two sons, that his will so provided, and that it gave them an opportunity to purchase the business over a period of time.
The caveat, which was not demurred to, averred in paragraph 9 of count one, that, "Prior to December, 1944, the will of Leopold Adler, according to statements which he had made to caveator, provided that his share in the department-store business would be left to caveator and to Sam G. Adler who had been active in same for many years, with the night to pay testator's share of the business over a period of 10 years."
A plaintiff is entitled to prove everything he alleges in a petition upon which he is permitted to go to trial without objection on the part of the defendant, either to its form or its substance. Mayor &c. of Macon v. Melton, 115 Ga. 153 (41 S. E. 499); Beasley v. Burt, 201 Ga. 144 (4) (39 S. E. 2d, 51).
5. Special ground 7 complains of the admission of medical testimony given by Dr. Harry Y. Righton in answering a hypothetical question, the objection being that the language in the question, "by a person who dominated him," was a conclusion which had to be decided by the jury.
"An expert may testify as to his opinion in response to a hypothetical question which assumes facts identical with the testimony in the case then on trial." Yarbrough v. Yarbrough, 202 Ga. 391 (8) (43 S. E. 2d, 329). The hypothetical question propounded in the present case was not subject to the objection interposed, and the court did not err in allowing the testimony.
6. Special grounds 13 and 14 complain that the court charged fully on the manner in which undue influence might exist, including the language, "a very wide range of testimony is permissible on the issue of undue influence, and this is due to the fact that undue influence seldom can be shown except by circumstantial evidence." It is insisted that the court should have gone on and charged the language of Code 38-102, defining circumstantial evidence, and should have charged the principle that, "where a plaintiff in a civil case supports his action solely by circumstantial evidence, before he is authorized to have a verdict in his favor, the testimony must be such as to reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis."
There was no request to define circumstantial evidence or to charge the principle of law referred to. In a civil case, where the evidence as to the single and controlling feature was entirely circumstantial, it has been held that the failure of the court, in the absence of a request, to give in charge the rule on circumstantial evidence was not a proper ground for new trial. Cowart v. Strickland, 149 Ga. 397 (4) (100 S. E. 447).
Special grounds 3, 4, and 9 were expressly abandoned in the brief of the propounders. Special ground 2, complaining that the court erred in allowing counsel for the caveator to state his contention with reference to motives that caused the caveator to file the suit against his father, and special ground 8, complaining of a hypothetical question propounded to Dr. Righton, were not argued, and are considered to be abandoned. However, an examination of these grounds fails to show cause for a reversal.
7. Under the general grounds, the propounders produced evidence to show that the testator was a man of strong will power with a clear rational mind, that no undue influence was exercised over him; that the codicil itself gave the reasons for disinheriting his son, Melvin, which instances of misconduct on the part of Melvin as related in the codicil, in fact, had occurred. This evidence makes a strong case for the propounders, and would have authorized a verdict in their favor. But this court does not pass upon the credibility of witnesses, nor the weight to be given evidence on disputed facts. These are questions for the jury. Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against is weight, is a question the law vests in the trial judge's discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it.
Where, as here, a codicil to a will has been set aside on the ground of undue influence and the verdict has been approved by the trial judge, the merits of the case as made by the propounders is not the question before this court, but only the sufficiency of the evidence of the caveator.
The evidence of the caveator--as to the age, mental and physical condition of the testator, the various instances of complete control and domination of the testator by the daughter, covering a long period of time up to and through the date of the execution of the codicil, her embittered feeling towards the caveator which was expressed to her father, her complete control of him physically and dominance over him mentally--was sufficient to authorize the verdict. Code, 113-208; Fowler v. Fowler, 197 Ga. 53 (2) (28 S. E. 2d, 458); Bowman v. Bowman, 205 Ga. 796 (55 S. E. 2d, 298), and citations. This is true, notwithstanding there was no direct evidence that the daughter participated in the preparation or execution of the codicil. Undue influence exercised prior to the execution of the codicil may continue to operate on the mind of the testator at the time of its execution. Trust Co. of Georgia v. Ivey, 178 Ga. 541 (3) (173 S. E. 648).
Judgment affirmed. All the Justices concur, except Duckworth, C.J., and Almand, J., who dissent.