(105 S.E.) charge that was made. The plaintiff invited | queathed to her husband, Joel J. Hooker, ali the charge and it does not lie in her mouth her property of every kind and description to complain if her plan succeeded too well. whatsoever. After her death Joel J. Hooker Thirty years and more of kind treatment is was substituted as party plaintiff; and the a guaranty of freedom from violence in the case was heard upon testimony taken in future. open court without a reference. His honor the county judge rendered a decree sustaining the validity of the deed, and dismissing the complaint, from which the plaintiff appealed. The defendant has a small farm on which he made a comfortable living for himself and his wife for years, when she lived with him and helped him. The case shows that unless these two shall make up their differences, and go back to their home again, the place cannot support one. The respondent offers and has continued to offer from the first to take her back and resume again the old way. This she has refused. Her remedy is in her own hands. There was no error in refusing a new trial. The respondent must keep open his offer to take his wife back to the old home and if he fails to do so the appellant may make a new application for alimony. With this proviso the judgment is affirmed. The testimony of Mrs. J. B. Salley, a witness for the plaintiff, is as follows: "Mrs. Belinda C. Hooker and Mr. Joel J. Hooker are my mother and father. H. Kennerly Hooker is my brother. We are the only children except a half-sister, Mrs. Estelle Joyner, who is a daughter of Joel J. Hooker by his first marriage. I have no interest in the property involved in this suit, and I have never tried to procure an interest therein. My parents have been living with me for the past 12 or 15 years, with the exception of about 2 or 3 years when they lived in Columbia, in the house involved in this suit. They then moved to my brother's home, H. Kennerly Hooker, HYDRICK and WATTS, JJ., concur. The CHIEF JUSTICE and GAGE, J., did near North, and stayed there about 2 or 3 not participate on account of sickness. (115 S. C. 297) HOOKER v. HOOKER. (No. 10304.) (Supreme Court of South Carolina. Dec. 22, 1919.) 1. Deeds 196(3)-Presumption of undue influence arises from relation of parent and child. In a mother's action to set aside a deed to her son, a court ruling that there was no presumption of undue influence arising from the relation of parent and child, and that the burden of proof rested upon the plaintiff, was reversible error. 2. Deeds 211(4)—Evidence held to show undue influence. In a mother's action to cancel a deed to her son, evidence held to show undue influence. Appeal from Richland County Court; M. L. Whaley, Judge. Action by Belinda C. Hooker against H. Kennerly Hooker and another, in which, upon plaintiff's death, Joel J. Hooker was substituted as plaintiff. Decree dismissing the complaint, and plaintiff appeals. Reversed. This action was commenced on the day of July, 1917, by Belinda C. Hooker against her son, H. Kennerly Hooker, and Gertrude Nathens, as defendants, for the cancellation of a deed of conveyance executed by Belinda C. Hooker to H. Kennerly Hooker, dated the 7th of June, 1915. Belinda C. Hooker died about the 5th of February, 1918, leaving of force her last will and testament, whereby she devised and be months. Then they came back to my home, and have remained there ever since, until my mother's death, and my father is still living with me. During all the time they stayed with me I supported them. My father has been in bad health for about 20 years, and has been unable during that time to work. My mother has also been in bad health for about 20 years. She had Bright's disease, and was practically an invalid. She died February 5, 1918, and was 71 when she died. My father is 77 or 79 years old. The house and lot in Columbia involved in this suit was the only property they had. I do not know anything about the transaction between my brother and mother about the deed to the house and lot in Columbia, as I was not present when it occurred. My mother and father were staying at my brother's when the deed was made. The only statement I have heard my brother make about that transaction, was after my mother's death he came to my house to see my father, and asked me if I wanted half of the property, and I told him I did not. He then asked me something concerning the rent, and said he was glad Mother was dead; that he would have had to gotten up in court and make her out a falsehood. My brother was not present when my mother died, nor was he present at the funeral, although I sent him word of her death. He never visited my mother while she was at my home after she left his house to come and live with me. My mother had her right mind, but was in very bad health. She was very forgetful and very childish. She was dependent upon some one else than herself for guidance. Q. Who did she usually depend upon for direction? A. Why, she usually asked me for advice sometimes; I guess those she was with. She was living with my brother H. Kennerly Hooker, in June, 1915. That is the time the alleged deed was made to him for this property. She she moved near North to live with my brother. had been living in this house in Columbia, when Shortly after she signed this paper to my brother she and my father came to live with me. I don't know whether she could under- my wife demanded the title back my son told stand business transactions or not. Mother us to leave. Q. Told you that you had to had a mind, but it was very little and she was leave? A. Leave then, right then, after he very feeble. She was an invalid for at least had everything we had in the world, and we 15 years. My mother was in possession of the had nothing, both broke, had nothing under the premises until her death, and still is in posses- canopy of heaven any more, to get out and go. sion. She never turned over possession to my We then went to our daughter's, Mrs. Salley, brother." where we have been ever since. She had us to support after Kennerly had everything we had." No cross-examination. Miss Jessie Joyner, witness for plaintiff, thus testified: "Mrs. Belinda C. Hooker was my stepgrand-| mother. I was present at my home when she signed the deed. She was there on a visit. Uncle Kennerly Hooker came in and brought her a paper. I was passing as he came in, and he asked me, 'Do you mind witnessing this signature?' Mr. W. H. Stabler was there with him. The paper was not read over to my grandmother, so far as I know, nor was any statement made as to what it was when she signed it. I did not know myself what kind of paper I was witnessing. No one informed me what it was.' W. H. Stabler, a witness for the defendant, thus testified: "Have known Mrs. Hooker all my life. She is a woman above ordinary intelligence. I saw no change in her condition that afternoon. She appeared as I had always known her. Nothing was said that afternoon about the paper being a paper to secure breaking the will that had been made." Cross-examination. "Nothing was said about the kind of paper it was, except Mr. Hooker stated he wanted us to witness this deed. Mr. Hooker asked me to come there to witness a deed. I knew Joel J. Hooker, the plaintiff, testified as nothing about the transactions between Mr. follows: and Mrs. Hooker. She could not have read it in the time she took to open it up. She glanced at it and signed it at the proper place. It was not read to her. Mr. Hooker did not say anything to her, just handed her the paper. Mr. Kennerly Hooker took the paper, and the next time I saw it was at Mr. Stabler's. That is all I know about the transaction." "I was the husband of Belinda C. Hooker, and as devisee under her will I am the plaintiff in this action since her death. My wife was in possession of this property until her death. I acted as her agent in renting it. Since her death I have been in possession. I am 76 years old. My wife was 70 or 71 when she died. My wife's health in her latter days was bad. She had Bright's disease, or something of that sort; she was in bad shape. Q. What effect did it have upon the normal condition of her "I am a practicing physician; I live at Swanmind? A. Well, it was bad; sometimes she sea, S. C. Have been practicing about nine was in bad shape, bad fix. Sometimes she years. I knew Mrs. Belinda C. Hooker; I redidn't know anything hardly. I think it did member when she died. During the last few affect her in business transactions. I tried to Dr. M. L. Brogdon, witness for defendant, testified: fied as follows: direct her, and tell her, and carry on her busi-years of her life I saw her several times during the year, but not professionally. I have ness matters, and manage them for her. Some- given her medicine several times. I have talktimes she appealed to Mrs. Salley, her daughed with her, and observed her, and I have ter. I don't think she ever appealed to her never seen anything wrong with her mind. Her son, H. Kennerly Hooker, for advice. I and my mind was clear every time I have seen her. wife were living in Columbia, in our own home She was a very intelligent woman." we had bought and built on, until 1915, when our son, H. Kennerly Hooker, told us if we would go and live with him he would support and take care of us. We went. After we got there he asked my wife to sign a little paper to keep Mrs. Salley from interfering with the will. He fooled her to sign a title. I found out after it was done. My wife had made a will in favor of H. Kennerly Hooker. By some means or other my wife found out that she had signed a title to her property in Columbia instead of a paper requesting her daughter, Mrs. Salley, not to interfere with her will, and she demanded back the title from her son. Then he threw the paper in her lap, saying, 'I hope now you are satisfied.' Q. What was that paper? A. Well it was the bogus title, I suppose, the fraudulent title, nothing but a fraud, a swindle. I saw the paper after he threw it in her lap. I found it was a deed for that house and lot in Columbia, a title paper. I then inquired and found the paper recorded here in Columbia. Before this paper was sign. ed I was not consulted about it by any one. "I am the defendant in this case. I am 42 years old. Live in Calhoun county, about eight miles from Woodford. Am a married man. Gelba Hooker is my oldest child. I have ten children younger than her. Youngest child is about 6 years old. I had both the will prepared and later the deed prepared. Both done at my mother's suggestion. The will has been in my possession since it was signed. My father and mother came to live with me in the spring of 1915. She had been there a few days before she signed the deed. She could write. I was present when she signed the deed; it was Monday evening about a half hour before sundown. I carried the deed home after she signed it. Afterwards I had it probated, then had it recorded. I paid the taxes on the property and kept up the insurance. These are four tax receipts. I have paid all the taxes since my mother gave me a deed to (105 S.E.) for $1,500 and have kept it insured ever since she signed the deed. Q. Mr. Hooker, state how the title deed came to get out of your possession. A. My father asked me to let him see the deed. He gave it to my mother and she put it in her trunk. That is how they got possession of it. This was after the deed had been recorded. I didn't collect the rents because I told my mother she could have the use of the property as long as she lived. I demanded the rent a while before she died, about two months before she died. She didn't pay the taxes as far as I know. After her death I again demanded the rent of the agent, but he refused to pay it to me. I negotiated a loan on this property from Miss Nathans mortgage dated September 30, 1915. This mortgage is still on the property and unpaid. My father and mother moved away from my house because they wanted to; they asked me to move them to Dr. Salley's, which I did. I was willing to keep them there, but they seemed to be dissatisfied. After they claimed I fooled them into signing the deed they became dissatisfied. you know. That is the time they got dissatisfied, and moved back. I told them if they wanted to move all right, but if they wanted to stay they were welcome to stay. My mother helped around the house a little. She acted just as she always did. She could read, wash dishes, and drew a few buckets of water. She could converse about current matters of the day normally, as she always could." Cross-examination. "In the will my mother sent me from Columbia my father was to have a life estate. There is no provision in the deed under which I now claim for a life estate in my father. I had the deed prepared at her request. I gave her no money for the deed. The deed does not De Pass & De Pass, of Columbia, for appellant. A. J. Hydrick, of Orangeburg, and Melton & Belser, of Columbia, for respondent. GARY, C. J. [1] In his decree his honor the county judge says: "The sole question is whether there was such misrepresentation or undue influence as would vitiate the deed to the defendant from his mother. * * In the cause at bar we have in dispute, a deed from mother to son. Does that relationship ipso facto raise a presumption of undue influence, the burden of rebutting which would be with the defendant? It * * There being no presumpdoes not. tion of either undue influence or misrepresentation from mere relationship, has the plainI hold not. tiff proven either? Indeed, did finding would be that it had been met by the the presumption of undue influence exist, my defendant and overcome." The following authorities show that there was error on the part of his honor the county judge in ruling that there was no presumption of undue influence arising from the relation of parent and child, and that the burden of proof rested upon the plaintiff: Way v. Ins. Co., 61 S. C. 501, 39 S. E. 742; Craddock v. Weekley, 85 S. C. 329, 67 S. E. 308; Huguenin v. Adams, 110 S. C. 407, 96 S. E. 918. carry out the purpose of the will to give my [2] Not only was there a failure on the part of the defendant to give a satisfactory explanation of the transaction between him and his mother, but the testimony in behalf of the plaintiff clearly shows that there was undue influence on the part of the defendant. Reversed. WATTS, FRASER, and GAGE, JJ., concur. (115 S. C. 330) mark on the envelope shows that it was not LOUIS LEFKOWITZ & BRO. v. WHARTON. mailed until the next night at 10 p. m. might be (No. 10568.) (Supreme Court of South Carolina. Jan. 31, 1921.) Sales 53(2)-Whether cancellation of order was before acceptance question for jury. Whether letter of cancellation of an order for goods was received before the order was accepted held, under the evidence, a question for the jury. Appeal from Common Pleas Circuit Court of Greenville County; J. E. Peurifoy, Judge. Action by Louis Lefkowitz & Bro. against E. M. Wharton. From an adverse order, plaintiff appeals. Appeal dismissed. Joseph Kahn, of New York City, and Wilton H. Earle, of Greenville, for appellant. C. G. Wyche, of Greenville, for respondent. GARY, C. J. This is an appeal from an order refusing to direct a verdict in favor of the plaintiff. The following statement appears in the record: a circumstance from which the jury could reach a conclusion that the telegram was sent after the order of cancellation was received, and that the goods were shipped after that date. While it is true that the testimony here shows that the goods were shipped before the order of cancellation, but, as I stated, it seems to me that those circumstances raise an issue for the jury, that would not warrant me in saying as a matter of fact that the letter of cancellation was not received until after the order was accepted by plaintiff, so I will submit that to the jury under proper instructions, or at least under instructions-I don't know whether they will be proper or not." These reasons are satisfactory to this court. Appeal dismissed. HYDRICK, WATTS, and FRASER, JJ., concur. GAGE, J., did not participate. (115 S. C. 325) STATE v. WYATT. (No. 10561.) (Supreme Court of South Carolina. Jan. 31, 1921.) Criminal law 1023(3)—Overruling plea of former jeopardy not appealable after mistrial. An appeal after a mistrial from an order "This action was commenced July 2, 1918, by appellant filing a summons and complaint in the court of common pleas for Greenville county, the complaint alleging that plaintiff sold and delivered to defendant two dozen Sam Brown army belts at a price set forth in the itemized account attached to the complaint, by which plaintiff lost on same the sum of $72.00, on an order which was mailed by defendant at Green-overruling defendant's plea of former jeopardy ville, S. C., on October 18, 1917; and, in addition, the sum of $2.72 express charges, the defendant having refused to accept the goods when delivered at Greenville. The complaint further alleges that plaintiff shipped to defendant chin straps of the value of $18.00, on an order mailed by defendant December 5, 1917. The complaint alleged other items, which are not involved in this appeal. "The defense was a general denial; that the order for the belts had been countermanded by defendant; that the chin straps had never been received by defendant. "At the conclusion of the testimony plaintiff moved for a directed verdict of $92.72, for items made up of $74.72 and $18.00, respectively, which motion was refused. The jury brought in a verdict for $18.00. "Plaintiff appeals from the order refusing the motion for a directed verdict." His honor the presiding judge assigned the following reasons for refusing the motion: "My conclusion is, gentlemen, that the case ought to go to the jury, under all the facts and circumstances in the case, to determine whether or not the letter of cancellation had been received before the order was accepted. "The testimony with reference to the telegram that was received by the defendant is shown to have been out of the ordinary in dealings had with the parties before; that and the fact that the bill is dated one day and the post must be dismissed, since there has been no final judgment, and the ruling is not appealable. Appeal from General Sessions Circuit Court of Union County; W. H. Townsend, Judge. John R. Wyatt was charged with a crime, and after a mistrial he appealed from an order overruling his plea of former jeopardy. Appeal dismissed. S. E. Barron and McBeth Young, both of Union, for appellant. Ira C. Blackwood, Sol., of Spartanburg, for the State. PER CURIAM. There was a mistrial in this case, and the appeal is from an order of the circuit court overruling the defendant's plea of former jeopardy. The case involves a construction of the Eighteenth Amendment of the United States Constitution. No argument was filed by the solicitor. As there has not been any final judgment, the ruling of his honor, the presiding judge, is not appealable. State v. Byars, 79 S. C. 174, 60 S. E. 448, and cases therein cited. Appeal dismissed. GAGE, J., did not participate. (No. 1880.) 3. Highways 184(1)-Petition held to allege a cause of action for injuries to automobile. (Supreme Court of Georgia. Jan. 14, 1921.) bile in collision with defendant's automobile at A petition for injuries to plaintiff's automo (Syllabus by Editorial Staff.) a highway crossing held to set forth clearly Appeal and error ~~874(2)—Exceptions as to and specifically a cause of action. which writ is premature not ruled on. On writ of error to review the denial of an ad interim injunction, rulings will not be made on exceptions as to which the writ of error is premature. Error from Superior Court, Richmond County; H. C. Hammond, Judge. Action by F. A. Grabowskii and others against W. S. Gardner and others. An injunction was denied, and plaintiffs bring error. Affirmed. W. K. Miller, of Augusta, for plaintiffs in GILBERT, J. 1. The court did not err in refusing to grant an ad interim injunction. 2. The writ of error, as to all other exceptions, is premature, and no rulings are made thereon. Burkhalter v. Roach, 145 Ga. 834, 90 S. E. 52; Armour v. Stubbs, 150 Ga. 520 (3), 104 S. E. 500; English v. Rosenkrantz, 150 Ga. 105 S. E. 292. Under the peculiar facts of the case, leave is granted to treat and consider the official copy of the bill of exceptions on file in the trial court as exceptions pendente lite. Judgment affirmed. All the Justices concur. (26 Ga. App. 140) JONES v. TANNER. (No. 11758.) 4. Pleading ~8(17) — Allegation as to negligence in running automobile held not a conclusion. In action for injuries to plaintiff's automobile in collision with defendant's automobile debtedness sued for arose by "defendant havat a crossing, allegation of petition that ining recklessly run his Dodge roadster in such negligent and careless manner as to collide with plaintiff's Ford five-passenger car" is not demurrable as a conclusion. 5. Highways 184(1) · Paragraph of petition for injuries to automobile held not demurrable. for injuries to automobile in collision with deParagraph of petition to recover damages fendant's automobile at highway crossing, alleging, "Plaintiff further shows that, due entirely to the reckless and careless running of defendant's car by the defendant, the defendants' car collided with plaintiff's car, wrecking and damaging plaintiff's car," etc., held not demurrable because not alleging how or in what respects plaintiff's car was damaged. 6. Pleading 8(17)-Allegation that defendant was driving at high speed, etc., held not a conclusion. Paragraph of petition for injuries to plaintiff's automobile wherein plaintiff shows that the running of defendant's car at such a high rate of speed at said public crossing without giving signals was the grossest kind of negligence, and that such negligence was entirely responsible for the accident, as plaintiff's car was driven carefully, held not demurrable as a conclusion. 7. Pleading 216(2) Demurrer overruled in view of amendment of petition. Where special demurrer to paragraph of (Court of Appeals of Georgia, Division No. 2. petition for injuries to automobile was aimed Jan. 20, 1921.) (Syllabus by Editorial Staff.) 1. Highways 184 (3)-That both parties in collision violated statute did not take case from jury. In action for injuries to plaintiff's automobile in collision at highway crossing with defendant's automobile, in which defendant crosscomplained for damages to his car, that both parties were negligent per se in violating statute relating to speed at crossings would not take case from jury, as whether violation was proximate cause of injury, whether plaintiff's negligence was as great as that of defendant, or whether plaintiff could have avoided the injury were questions for the jury. 2. Appeal and error 1001(1)-Verdict supported by evidence conclusive. A verdict supported by any evidence cannot be disturbed, in the absence of any material error of law. at paucity of allegations as to damages, fully - Approved Appellate court cannot say there was no evidence to support the verdict for the plaintiff approved by the trial court. Error from City Court of Sandersville; E. W. Jordan, Judge. Action by Mrs. Lillie B. Tanner against Collins Jones. Demurrer to petition overruled, judgment for plaintiff, and defendant brings error. Affirmed. The petition was as follows: (1) That the said Collins Jones is a resident of said county. (2) That the said Collins Jones is indebted to your petitioner in the sum of $250. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |