Opinion
6 Div. 933.
May 17, 1923.
Appeal from Circuit Court, Lamar County; T. L. Sowell, Judge.
J. C. Milner, of Vernon, and Hill, Hill, Whiting Thomas, of Montgomery, for appellant.
The evidence of the witness Trimm was self-serving, and should have been excluded. The admission in evidence of the application for dog license and the checks signed by decedent was erroneous. Acts 1915, p. 134; Chisolm v. State, 204 Ala. 69, 85 So. 462. Under the plea denying execution, the defendant cannot rely upon the alleged mental incapacity of his intestate. Milligan v. Pollard, 112 Ala. 465, 20 So. 620; Brown v. Johnston Bros., 135 Ala. 608, 33 So. 683.
S. T. Wright, of Fayette, and Foster, Verner Rice, of Tuscaloosa, for appellee.
The papers offered were admissible in evidence as showing deterioration of the mental faculties. Sharpe v. Hall, 86 Ala. 110, 5 So. 497, 11 Am. St. Rep. 28; Gilley v. Denman, 185 Ala. 561, 64 So. 97; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Sanders v. Davis, 153 Ala. 375, 44 So. 979. It was competent to prove the mental inability of intestate to make a calculation. Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473; Mooney v. Olsen, 22 Kan. 69; Wetmore v. Mell, 1 Ohio St. 26, 59 Am. Dec. 607; 16 Cyc. 1181. Evidence of insanity is relevant under the plea of non est factum. Winston v. Moffet, 9 Port. 518; Hunt v. Test, 8 Ala. 713, 42 Am. Dec. 659; Walker v. Clay, 21 Ala. 797.
The physical execution of the note by the defendant's intestate was not seriously contested, and in fact the defendant proved by one of its witnesses that J. W. Dorroh actually signed the same, and the trial court in the oral charge confined the issue to the mental capacity and responsibility of said Dorroh at the time of signing the said note. The evidence on this issue was in conflict, and the trial court therefore properly refused the defendant's requested general charge. The appellant's counsel insists, however, that it was entitled to the general charge because insanity should have been specially pleaded and was not provable under the plea of non est factum. As we understand the rule in this state, if the maker of the instrument was incapable of binding himself because of insanity, there was in legal effect no valid execution of the instrument, and such a defense is equivalent to a plea of non est factum. Winston v. Moffet, 9 Port. 518; Milligan v. Pollard, 112 Ala. 465, 20 So. 620. Moreover, if such a defense had to be specially pleaded, the plaintiff permitted the case to be tried upon this issue without objecting to the evidence of insanity upon this ground, and we doubt if it can raise this question for the first time by the general charge.
The acts, sayings, and general course of conduct of the deceased Dorroh prior and up to the signing of the note, that is, from the time it was contended that his mind began to fail, was admissible as bearing upon his mental responsibility and did not offend the rule against a party making evidence in his own behalf. Nor was there error in permitting the application for a dog license and certain checks previously filled out and signed by said Dorroh to be introduced in evidence. As we understand, they were not introduced for the purpose of having the jury compare the same with the signature to the note, but as merely bearing on his intelligence and mental condition. Besides, if improperly admitted to identify or establish his signature to the note, it would be without injury for the reason, as above noted, the signing of the note was not controverted, either by the evidence or the charge of the court.
It may be questionable as to whether or not the plaintiff's refused charges 3 and 6 are so framed as to put the trial court in error for refusing same, a point, however, we need not decide, for the reason that the substance and effect of same were covered by the oral charge of the court.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.