Summary
In Tallmadge v. Robinson (1952), 158 Ohio St. 333, 49 O.O. 206, 109 N.E.2d 496, this court declared that threats may be held to constitute duress "* * * if such threats overcome the will of such person, remove his capacity to act for himself and cause him to perform an act he is not legally bound to perform * * *."
Summary of this case from Blodgett v. BlodgettOpinion
No. 32957
Decided December 10, 1952.
Duress — Threats to testify constitute duress, when — Matters bringing humiliation and disgrace upon a person or his family — Threats made to third person, communicated to person influenced — Effect upon particular person influenced, determinative — Facts considered in determining — Will contester's threats to give false and humiliating testimony — Promissory note given contester to dismiss suit — Maker not liable to payee on note, when.
1. Threats to give testimony, which testimony would be false, as to matters which would have the effect of bringing humiliation and disgrace upon a person or his family in their community may constitute duress, if such threats overcome the will of such person, remove his capacity to act for himself and cause him to perform an act he is not legally bound to perform; and it is not necessary that such threats be made directly to the person to be influenced, if they are made to a third person with intent and purpose that such threats will be communicated to the person to be influenced thereby, and the threats are so communicated to and acted upon by the person intended to be so influenced.
2. In determining whether a course of conduct results in duress, the question is not what effect such conduct would have upon an ordinary man but rather the effect upon the particular person toward whom such conduct is directed, and in determining such effect the age, sex, health and mental condition of the person affected, the relationship of the parties and all the surrounding circumstances may be considered.
3. Where the plaintiff in a will contest case threatens to support the petition solely by her own testimony of incestual relations by the testator and by means of such threats subjects a daughter of the testator to duress and thus procures a note from her payable to the contester, in consideration of which the contester agrees to dismiss the will contest case and refrain from giving the threatened testimony, and where the evidence which the payee of the note threatened to introduce in the will contest case is false and untrue, the maker of the note is entitled to judgment in her favor when sued thereon by the payee, even though the will contest case had been dismissed as agreed.
APPEAL from the Court of Appeals for Washington county.
This is an action on a promissory note for $10,000 executed by Martha Jane Cunningham Robinson in favor of her half sister, Luetta Cunningham Tallmadge.
Dr. Stephen A. Cunningham of Marietta, Ohio, had two children by his first marriage; one was Luetta, the payee of this note, who was born in 1891, the other was Robert P. Cunningham who was born in 1898. After the first wife procured a divorce from Dr. Cunningham in 1914, he remarried, and in 1920 the defendant herein, Martha Jane Cunningham, was born as the only issue of the second marriage. The daughter, Luetta, testified against her father in the divorce proceeding and thereafter until the time of his death she and her father were entirely alienated. Dr. Cunningham died August 14, 1939, at 72 years of age, leaving his estate in trust for the benefit of his second wife and after her death the corpus of the trust with the exception of $5 which was willed to the daughter, Luetta, was to be divided equally between the son, Robert, and the daughter, Martha Jane, hereinafter referred to as Jane. The estate was in excess of $100,000.
On February 20, 1940, Luetta instituted an action to contest her father's will, but she did not press the action for trial during the life of his widow — her stepmother. The widow died in April 1946. Shortly thereafter Robert, who lived in Chicago, came to the home of his half sister, Jane, in Marietta. They discussed settlement of the father's estate and called upon the attorney for the estate. Being advised that the estate could not be closed until the will contest case was disposed of and that defense of that action would probably cost $2,500, Robert and Jane agreed between themselves that they would offer Luetta that sum if she would dismiss the action. Thereupon Robert visited Luetta for approximately two days at her home in Ashland county and conveyed the offer to her. She rejected it. She then informed Robert that she would testify as to improper conduct of her father with her as evidence of mental incapacity. Although Robert had no authority to bind Jane to pay Luetta more than half of $2,500, he was so disturbed by the story which she told him that he finally agreed to pay her $10,000 himself and to undertake to induce Jane to pay her $10,000. He returned to Jane's home and told her that Luetta threatened to say in court that her father had practiced incest with her for a period of six years before her marriage and during the first year of her marriage. The record shows that she was married in 1909, when 18 years of age. This threat greatly shocked Jane, she became very nervous and could not sleep and her existing poor condition of health became worse.
After conferences with Robert, lasting through most of two days during which he urged her to yield to Luetta's demand, Jane consented to sign a note for $10,000 to protect her father's name and avoid the disgrace which the family would suffer. At that time Jane was 26 years of age and had three children under three years of age, including a baby of four months. She cared for them herself, did most of the housework and was in poor health. Her husband who had been an army captain had just returned from service in India. Robert was then 48 years of age, had been educated at the United States Naval Academy at Annapolis and was experienced in business. Luetta was 55 years of age.
Robert returned to Chicago and immediately forwarded to Jane a note for $10,000 executed by himself, a similar note for Jane to sign, which is the note now in controversy, and a draft of instrument to be signed by Luetta agreeing to dismiss the will contest case. The notes were to become due 90 days after the closing of the father's estate. The notes were dated May 8, 1946. Luetta dismissed the will contest case on July 6, 1946. The father's estate was fully settled October 17, 1947. Robert paid his note but Jane refused to pay hers.
It appears unquestioned that neither Robert nor Jane consulted any attorney with respect to their efforts to settle the will contest case, the threats made by Luetta or the propriety of executing the notes. In fact, the record indicates that the attorney who was settling the estate did not learn of the execution of the notes until February 1947 — approximately nine months after they were executed.
This action by Luetta against Jane upon her note was instituted May 7, 1948. The answer of the defendant sets forth the above facts and recites in great detail the conferences had between Robert and Jane after his return from his interview with Luetta and alleges that on account thereof the defendant "was placed in such a state of mind through the representations of the infamy and the thoughts of the future of herself and her children and the disgrace and the memory of her father's life that she executed and delivered the paper writing as copied in the plaintiff's petition herein."
The answer alleges that the representations were false and were known to be false by Luetta, that the same were initially conceived and planned by her and her brother, Robert, for the sole and only purpose to force the defendant through fear to sign said written paper, and that by reason thereof Luetta perpetrated a fraud on the defendant and caused her through compulsion and false representation to sign the paper. Defendant further alleges that the false representations so made were a result of a conspiracy between Robert and Luetta.
Luetta died shortly before trial of this case, and her husband, as executor, was substituted as party plaintiff, but her deposition had been taken. In that deposition she denied that incestual relations had existed between herself and her father but asserted that on two occasions he had "attempted" to have sexual relations with her; that one occasion was when she was 15 years of age and was acting as substitute office assistant; and that the other was during the first year of her marriage when she went to his room to call him to breakfast, at a time when her mother was in the kitchen and her husband was in the room next to her father's bedroom.
In the testimony of Robert given at the trial he neither affirmed nor denied that Luetta had told him that incest had been practiced for a number of years between her and her father, but he did state that Luetta had related to him the same two instances of "attempted" incestual relations.
The trial court charged the jury in part as follows:
"The court says to you that if you find that the defendant has failed to prove by a preponderance of the evidence that the said Robert P. Cunningham made false and fraudulent representations to the defendant as part of a scheme or conspiracy on the part of the said Robert P. Cunningham and Luetta Cunningham Tallmadge, and if you find that the defendant has failed to prove by a preponderance of the evidence that the said representations were made with the intent to deceive, and that the defendant was deceived thereby, then you will return a verdict for the plaintiff for the amount asked in his petition and against the defendant." (Emphasis supplied.)
The following three interrogatories were submitted to the jury at the request of the plaintiff, and the jury answered them as indicated:
"Interrogatory No. I. Do you find from the evidence that Robert P. Cunningham and Luetta Cunningham Tallmadge entered into a plan to induce Martha Jane Cunningham Robinson to sign the paper writing by having Robert P. Cunningham make false representations to her about the testimony which Luetta Cunningham Tallmadge would present at a trial in the contest of the will of Stephen A. Cunningham? Answer: No.
"Interrogatory No. II. Do you find from the evidence that the statements which Luetta Cunningham Tallmadge made to Robert P. Cunningham regarding the testimony which she would present at a trial of the contest of the will of Stephen A. Cunningham were false? Answer: Yes.
"Interrogatory No. III. Do you find from the evidence that the statements which Robert P. Cunningham made to Martha Jane Cunningham Robinson regarding the testimony which Luetta Cunningham Tallmadge stated she would present at a trial of the contest of the will of Stephen A. Cunningham were known by Robert P. Cunningham to be false at the time that he made them to her? Answer: No."
The jury rendered a general verdict for the defendant. Thereupon counsel for plaintiff moved the court to enter proper judgment on the findings of fact returned by the jury, asserting that the answers to the interrogatories were inconsistent with the general verdict. The court, holding that the answers to interrogatories I and III were inconsistent with the general verdict, sustained the motion and rendered judgment for the plaintiff notwithstanding the verdict of the jury.
Upon appeal the judgment of the trial court was affirmed by the Court of Appeals.
The cause is in this court upon the allowance of a motion to certify the record.
Messrs. Critchfield, Critchfield, Critchfield Johnston and Mr. W.D. Sauer, for appellee.
Mr. R.M. Noll and Mr. E.E. Erb, for appellant.
Both the trial court and the Court of Appeals proceeded upon the theory that the only, or at least the controlling, issue raised by the pleadings was as to the existence of a conspiracy between Robert and Luetta, which conspiracy was designed to defraud the defendant. We can not agree with that view of the issues.
The defense urged was not the existence of a conspiracy but the perpetration of a fraud by Luetta in representing that she would testify as to relations with her father which would bring lasting disgrace upon the younger half sister, Jane, and that duress resulted. True, it is also alleged that the representations were made to Jane through the means of a conspiracy, but that does not make the existence of the conspiracy the substance of the defense. The jury, in its answer to interrogatory No. II, found that the statements which Luetta made to Robert regarding the testimony which she would present at the trial of the will contest case were false.
It is not possible within reasonable limits to exhaustively discuss the development of the law of duress and to analyze the innumerable decisions of courts which treat of the defense of duress. Modern authorities on the subject agree that the legal conception of duress has undergone a radical change since the early period of operation of American courts. Historically, the defense of duress arose, and was developed, in connection with threats of bodily harm or criminal prosecution. In the English courts, as well as in the early American courts, the threat to which the complaining party was subjected must have been of such serious character as to create fear such as would impel a person of ordinary courage to yield to it. The standard by which the gravity of the threat was measured was the effect upon the mind of a man of ordinary firmness and courage. The adoption and application of such a legal standard obviously made the defense of duress unavailable to those who for any reason did not measure up to the legal standard of firmness, courage and strength of will. By a long process of development those ancient conceptions have been modified, so that today the test as to whether duress existed is the effect produced upon the complaining individual. The courts now seek to determine whether the threats were such as to have overcome the will of the person threatened and to have created a state of mind such that he was induced to do an act which he would not otherwise have done and which he was not bound to do. The real and ultimate fact to be determined in every case is whether the party affected really had a choice; whether he had his freedom of exercising his will. Contrary to the inquiry of the early days, the courts now consider the characteristics of the person affected, including the age, sex, state of health, mental capacity, relation of the parties and all attendant circumstances. That which would not create duress with respect to an ordinary, strong, vigorous individual may very well constitute duress with respect to an individual having less strength and vigor.
This development of the legal conception of duress carries with it another incidental change. Duress is no longer confined to situations involving threats of personal injury or imprisonment, although most of the modern decision do arise out of threats of that character. Today, according to the weight of authority, a threat of personal or family disgrace may be of such gravity as to deprive the one threatened of the mental capacity necessary to execute a valid contract.
It is also the prevailing modern view that threats which result in duress need not be conveyed directly to the one threatened. It is sufficient if the threats were made to a third person, with the intent that the threats be conveyed to the person to be affected, or with knowledge that they would be so conveyed, and with the intent of the one making the threat to thereby procure an agreement or some other advantage from the person who was the object of the threats; that the threats were so conveyed; that they did have the intended effect; and that the one making the threats thereby procured the agreement or other advantage desired.
This court recognized this modern view of duress in its decision in State, ex rel. Lattanner, Deputy Supt. of Banks, v. Hills, 94 Ohio St. 171, 113 N.E. 1045. In that case, a note was executed by the defendant because of threats of prosecution of his brother, which threats were not made to the one signing the note but to another brother. The second paragraph of the syllabus of that case reads:
"However, the defense of duress is available to the maker of such note, and if the execution thereof was induced solely by threats of criminal prosecution of a brother of the defendant, made for that purpose by officers of the payee bank and a representative of the state Superintendent of Banks, and under such circumstances as to constitute a reasonable and adequate cause to control the will of the maker of said note, he may be relieved from payment thereof."
The opinion, written by Judge Matthias, contains the following paragraph:
"It further appears from the record that these representations and threats were communicated by Frederick P. Hills to his brother, the defendant, and there is evidence in the record that by means of such threats the defendant was coerced into signing the note, and that but for such representations and threats he would not have executed the note now sued upon. The evidence further indicates that these threats were made under such circumstances as to constitute a reasonable and adequate cause to control the will of the defendant, and that it was intended that they should be communicated to and influence the action of the defendant and induce the execution of the note. It was, therefore, competent to show that they were in fact communicated to the defendant and also to show what, if any, effect they had in inducing the defendant to sign the note."
For exhaustive discussions of the general principles hereinabove stated reference may be made to 5 Williston on Contracts (Rev. Ed.), Chapter XLVII, 4493; 1 Page on Contracts, 779, Section 481 et seq.; 1 Story on Equity Jurisprudence, 329, Section 341 et seq.; 17 American Jurisprudence, 883, Section 11 et seq.
From the host of decisions cited in texts and digests attention may be called to the following as representative: Galusha v. Sherman, 105 Wis. 263, 81 N.W. 495, 47 L.R.A., 417; Coleman v. Crescent Insulated Wire Cable Co., 350 Mo., 781, 168 S.W.2d 1060; Winget v. Rockwood, 69 F.2d 326; Henderson v. Plymouth Oil Co., 13 F.2d 932; Schultz v. Catlin, 78 Wis. 611, 47 N.W. 946; Price v. Bank of Poynette, 144 Wis. 190, 128 N.W. 895; McCarthy v. Taniska, 84 Conn. 377, 80 A. 84.
In the instant case even though conspiracy between Luetta and Robert was not proved, the evidence conclusively established that Luetta made threats that she would testify (falsely, as the jury found by its to interrogatory No. II) as to illicit relations between herself and her father; that no such alleged relationship between herself and her father had ever come to the knowledge of her younger half sister, Jane; and that the threats were made for the sole purpose of procuring an agreement on the part of Jane to pay Luetta $10,000. Although there was some ambiguity in the testimony as to Luetta's intent that her entire story should be conveyed to Jane, it is obvious that Luetta's desired result could not have been obtained without communication of her threats to Jane and the situation was such as to make ineffective any contention that Luetta did not intend that such communication to Jane should result. The evidence, uncontradicted, is also conclusive that for two days after Robert's return from his conference with Luetta, Jane was continuously subjected to Robert's repetition of the threats and was tormented and distressed by the thought of the lasting disgrace which would be suffered by Jane and her children if Luetta were not induced by payment of money to refrain from telling such story — which story the jury found to be untrue. The evidence clearly established that the two-day ordeal undergone by Jane so affected her physically and mentally as to control her will. The effect upon Jane was just what Luetta intended. Therefore, the note executed by Jane under such circumstances was procured by durees, and payment thereof can be successfully resisted.
The argument was made on behalf of the plaintiff that, at most, the note is voidable and that any consideration received by Jane must be returned if the contract is avoided and payment is refused. In our judgment, the peculiar circumstances of this case are a complete answer to this argument. Luetta did dismiss her will contest case, but in so doing she gave up nothing to which she was entitled. Her case was based solely upon her threatened testimony which the jury found to be false. In dismissing the action she, therefore, did nothing more than she was morally obligated to do. Jane received nothing from Luetta which could be returned. Jane is, therefore, not estopped to refuse payment of the note because of the dismissal of the will contest case.
Since, in our view, the answer of the defendant charged the commission of a wrong by Luetta which could be proved without establishing the alleged conspiracy and since there was, in our judgment, competent evidence of commission of the wrong, we consider the portion of the charge to the jury, hereinabove quoted, to be an incorrect statement of the applicable law. The charge so given recognizes only the existence of a conspiracy as a defense. This we consider not an error of omission but of commission.
A study of the record does not support the statement by plaintiff's counsel, or the apparent impression of the Court of Appeals, that the defendant relied wholly upon the alleged conspiracy as a defense in her answer and on the trial and that she raised the so-called conduit theory only in the Court of Appeals. At pages 77 and 78 of the printed record counsel for the defendant, in argument with respect to the admissibility of testimony, stated his position that if two persons operate together to create a fraud the person who benefits from the fraud, agency or no agency, can not profit, if through the perpetration of the fraud he obtained the desired result (the note). Again, in connection with the motion for new trial, defense counsel asserted that Robert conveyed the information which he obtained through Luetta, regardless of whether there was conspiracy between him and Luetta and regardless of whether he knew that the information was false, and that the ultimate determinative fact was whether the fraud was committed and had the effect of preventing the defendant from exercising her free will.
The charge of the court, to which we have hereinbefore referred and which we consider erroneous, was prejudicial to the defendant, not to the plaintiff, but the jury nevertheless rendered a general verdict for the defendant which was the verdict that it legitimately could have rendered had it been properly charged by the trial court. The plaintiff, therefore, has no sound ground upon which to challenge the jury's verdict. Concededly, it is the duty of the court to harmonize answers to the interrogatories with the general verdict if possible. We do not consider that the answers to the interrogatories as a whole were inconsistent with the verdict and we, therefore, hold that the trial court should not have rendered judgment for the plaintiff notwithstanding the verdict. Judgment for the defendant should have been rendered upon the jury's verdict.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court for entry of judgment for the defendant on the verdict and for further proceedings according to law.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS and HART, JJ., concur.
TAFT, J., concurs in paragraphs one and three of the syllabus and in the judgment.
The precise question before this court in the instant case is apparent from the following statement in plaintiff's brief:
"After the general verdict and the special findings were rendered by the jury, the plaintiff by motion asked the court to render judgment upon the special findings under the provision of Ohio General Code, Section 11420-18:
"`When a special finding of facts is inconsistent with the general verdict, the former shall control the latter and the court may give judgment accordingly.'"
Even if, as determined by the answer to interrogatory I, there was no conspiracy between Robert and Luetta, and even if, as determined by answer to interrogatory III, Robert did not know "that the statements which Robert * * * made to [defendant] * * * regarding the testimony which Luetta * * * stated she would present at a trial of the contest of the will * * * were * * * false," the remaining allegations of the answer, not thereby negatived by those special findings, would support the general verdict rendered for defendant. See State, ex rel. Lattanner, Deputy Supt. of Banks, v. Hills, 94 Ohio St. 171, 113 N.E. 1045, L.R.A. 1917B, 684. See, also, 11 American Jurisprudence, 255, Section 7; 7 American Jurisprudence, 939, 940, Section 245; 7 American Jurisprudence, 958, Section 262.
It follows that plaintiff's motion for judgment should not have been granted; and, instead, it should have been overruled and judgment should have been entered on the general verdict of the jury for the defendant. Klever v. Reid Brothers Express, Inc., 151 Ohio St. 467, 86 N.E.2d 608; McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138.
The majority opinion purports to dispose of numerous other questions, such as the conclusiveness of the evidence to establish the allegations of the answer not negatived by the special findings, claimed errors in the charge of the court, and whether the theory advanced by defendant at the trial in support of her defense is inconsistent with the theory now advanced by her in support of the jury's verdict. Likewise, some of the legal questions relative to duress, which are dealth with in the syllabus and majority opinion, may arise later in the instant case, if plaintiff should file a motion for new trial after judgment is rendered for defendant on the verdict of the jury. Until these questions do arise, I prefer to express no opinion on them.