{ "id": 1467087, "name": "Leo N. Levi Memorial Hospital Association v. Caruth, Administrator", "name_abbreviation": "Leo N. Levi Memorial Hospital Ass'n v. Caruth", "decision_date": "1948-03-08", "docket_number": "4-8462", "first_page": "1", "last_page": "9", "citations": [ { "type": "official", "cite": "213 Ark. 1" }, { "type": "parallel", "cite": "208 S.W.2d 983" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "72 Am. St. Rep. 331", "category": "reporters:state", "reporter": "Am. St. Rep.", "year": 1896, "opinion_index": 0 }, { "cite": "52 N. E. 465", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1896, "opinion_index": 0 }, { "cite": "39 N. Y. 111", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 502250 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/ny/39/0111-01" ] }, { "cite": "217 N. W. 71", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1896, "opinion_index": 0 }, { "cite": "241 Mich. 216", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1704446 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/mich/241/0216-01" ] }, { "cite": "198 Miss. 185", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1931294 ], "weight": 2, "year": 1896, "opinion_index": 0, "case_paths": [ "/miss/198/0185-01" ] }, { "cite": "114 N. E. 1072", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1896, "opinion_index": 0 }, { "cite": "219 N. Y. 642", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1957013 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/ny/219/0642-01" ] }, { "cite": "158 N. Y. S. 1100", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3167500 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/nys/158/1100-01" ] }, { "cite": "172 App. Div. 530", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2846866 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/ad/172/0530-01" ] }, { "cite": "141 N. E. 433", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "309 Ill. 586", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5103217 ], "opinion_index": 0, "case_paths": [ "/ill/309/0586-01" ] }, { "cite": "103 A. L. R. 1108", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "183 Atl. 269", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "87 N. H. 474", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4413354 ], "opinion_index": 0, "case_paths": [ "/nh/87/0474-01" ] }, { "cite": "204 Ark. 756", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444274 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0756-01" ] }, { "cite": "238 S. W. 65", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 339", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364144 ], "opinion_index": 0, "case_paths": [ "/ark/152/0339-01" ] }, { "cite": "232 S. W. 19", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "149 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718659 ], "opinion_index": 0, "case_paths": [ "/ark/149/0173-01" ] }, { "cite": "125 S. W. 630", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546826 ], "opinion_index": 0, "case_paths": [ "/ark/93/0548-01" ] }, { "cite": "199 S. W. 553", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "131 Ark. 501", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1578670 ], "opinion_index": 0, "case_paths": [ "/ark/131/0501-01" ] }, { "cite": "26 S. W. 826", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "59 Ark. 191", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327660 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/59/0191-01" ] }, { "cite": "27 L. R. A. 507", "category": "reporters:federal", "reporter": "L.R.A.", "weight": 2, "opinion_index": 0 }, { "cite": "29 S. W. 641", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "60 Ark. 169", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903682 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/60/0169-01" ] }, { "cite": "51 Am. Rep. 587", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "44 Ark. 42", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893416 ], "opinion_index": 0, "case_paths": [ "/ark/44/0042-01" ] } ], "analysis": { "cardinality": 971, "char_count": 16871, "ocr_confidence": 0.487, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47025637402026144 }, "sha256": "b1051337dde6d8a900d856c86ec0202b056b3992fa8434c3528464d138031476", "simhash": "1:467df0649df5e51e", "word_count": 2888 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leo N. Levi Memorial Hospital Association v. Caruth, Administrator." ], "opinions": [ { "text": "(trtuein Smith, Chief Justice.\nFrom a judgment in favor of Jack Caruth, administrator of the estate of Joseph Bailie, directing Leo N. Levi Memorial Hospital Association at Hot Springs to surrender designated securities, the defendant has appealed.\nBailie, seventy-four year\u2019s of age, died at the Hospital February 16, 1947 \u2014 six days after entering. Although a native of Georgia, the patient had for many years resided in Arizona at Mesa.\nLitigation resulting in this appeal had for its purpose determination of ownership in respect of $91,000 in United States bonds.\nWhen Bailie reached Hot Springs by bus he had two suitcases; and he carried a paper carton containing food and table utensils. After engaging in arguments with a taxicab driver regarding the fare, he was taken to police headquarters and booked for the night as a vagrant. The following morning Bailie called upon the proprietor of a local pharmacy \u2014 a man he had known for many years. The two went to Dr. E. It. Browning\u2019s office, where Bailie\u2019s illness was diagnosed as asthma, with coronary complications. Following futile efforts by telephone to procure hotel accommodations, a taxicab was called. Wilbur Ragsdale, the driver, was first directed to take Bailie to the bus station. Through use of two baggage checks the suitcases were recovered, then considerable time was spent in an endeavor to find lodging in acceptable quarters where charges would not exceed $1.50 per day.\nRagsdale as a witness said that after several discouraging experiences Bailie asked where the Hospital was, then directed that he be taken there. He had formerly written the Chamber of Commerce, and the letter had been referred to the Hospital, resulting in a communication from Bailie to the institution in which he stated that he would like to get \u201csome dope on your hospital\u201d.\nUpon arriving, at the Hospital Bailie told Miss Regina Kaplan, the superintendent, that he wanted to stay there two days and see how the Hospital was conducted. He understood that it was operated in the interest of charity. Import of Bailie\u2019s statements is that if satisfied regarding nature of the Hospital\u2019s humanitarian purposes, he would assist it financially. Several young lady employees overheard some of the comments made by Bailie. Their versions of what was said vary but slightly. Expressions were, (1) \u201cHe wanted to give us some of his money\u201d; (2) \u201cLet me give you my money first\u201d; (3) \u201cHe said he had a lot of money he wanted to leave with the Hospital\u201d; (4) \u201cI want to stay here several days, and if I like it I will give you some of my money\u201d; (5) \u201cIf you will take care of me I will take care of you\u201d; (6) \u201cI want to leave my money with the Hospital\u201d; (7) \u201cYou-have a fine institution here. ... If I should give you all that property of mine you now have, would you use it for the poor? ... I like how you treat these poor people: take it \u2014 I want you to go on with your work\u201d.\nAll of the witnesses who mentioned the subject agreed that Bailie was somewhat deaf and talked loudly; hence snatches of what he said were overheard, although none of the interested parties or those later used as witnesses had any idea at the time Bailie was speaking that he actually possessed wealth or that he intended to make a donation.\n, Bailie was taken to a room in the fifth ward. Miss Imogene Word, student nurse, took the patient\u2019s history and made an inventory of personal belongings. Her testimony was that these included a large black suitcase and a smaller one; also, \u201clots of bundles that contained old food that I threw away\u201d. The large suitcase contained a bathrobe and other clothing. Miss Word observed a brown envelope upon which had been written \u201cU. S. Bonds\u201d, or something to that effect. The envelope was not opened, nor was any further attention given to it when Bailie said he wanted it taken to the office. Another nurse assisted in an examination of the small suitcase, after which both containers were taken to the baggage room on the third floor; and the bonds went with them.\nMiss Word testified that she did not mention to the superintendent that one of the cases contained an envelope marked bonds. On cross examination she was asked, \u201cDid you make an inventory of [the patient\u2019s] effects?\u201d Sbe replied, \u201cI didn\u2019t put tbe bonds down there\u201d. Her first actual information regarding content of the envelope came after Bailie died.\nMiss Kaplan testified that while administering professionally to the patient, Bailie remarked, \u201cI have come here for you to take care of me. I have got my money here and I want to give you money\u201d.\nThe following day Miss Kaplan again visited Bailie. He had been bathed, and appeared to be in better condition. In response to the salutation, \u201cHow do you feel?\u201d the patient is quoted as having said, \u201cI am feeling better. I see how you are treating these poor people. I feel good that I have given you that money: you will be able to do a lot with it\u201d. Miss Kaplan said she replied, \u201cYes, that is the nicest gift we ever had\u201d, and Bailie\u2019s response was to the effect that he had been wanting to do it for a long time.\nThe patient\u2019s death occurred Sunday morning. Miss Kaplan had an engagement in Little Bock, but before leaving the Hospital she gave instructions that Bailie\u2019s body be sent to Caruth\u2019s Funeral Home to be embalmed and prepared for shipment. Miss Kaplan knew the suitcases were in the Hospital baggage room, but testified that \u201cAll I knew about [anything] of any value was the $368:1 thought the gentleman was referring to that during all of the time, and I thought that represented a fortune to him, and so far as we were concerned I thought it was a generous gift on his part\u201d.\nCaruth\u2019s hearse was sent to the Hospital. Bailie\u2019s body was found in a room where oxygen had been administered. The suitcases were in the same room. Miss Kaplan was present when the body was removed. A nurse in charge directed that the undertaker\u2019s employees \u201cbe sure to take everything\u201d. Miss Kaplan assured the attendants she would communicate with Caruth the following day and make such arrangements as might be necessary for disposal of the corpse.. After the body had been embalmed, Caruth and two of his aids opened the suitcases and found the bonds. An attempt was made to communicate with Miss Kaplan, but she was not found until Monday afternoon. She then went to Caruth\u2019s office, received the securities, and signed a receipt for a \u2018 \u2018 List of bonds belonging to Joseph Bailie, deceased\u2019 \u2019.\nIt is intimated, but not asserted, that someone connected with or interested in the .Hospital altered the receipt prepared by Miss Word, although no suspicion attaches to her; nor was there any purpose by appellee to identify a particular person, there being no proof that any of the immediate personnel \u2014 nurses, superintendent, etc., \u2014 was a party to an improper transaction. However, when the receipt was taken from Hospital files there had apparently been added to the inventory these words: \u201cOne package containing papers and bonds. Patient requests that these be given to Administrator\u201d. Bailie\u2019s name had been written twice. One signature showed evidence of erasure, or a \u201cmarking through\u201d.\nAppellee\u2019s witnesses thought the interlined words were so closely written as to disclose an afterthought. Since Miss Word, in identifying the inventory, testified that she \u201cdid not put the bonds down there\u201d, and because Miss Kaplan did not (during Bailie\u2019s lifetime) know that the bonds existed, responsibility for the refer-' ence to them was not traced to any conscious act of Bailie, hence there is no showing that he authorized the writing. Neither have we the benefit of physical inspection. Unfortunately the inventory was misplaced, and only a typewritten copy appears. When attorneys for appellee discovered the loss, testimony was taken in support of a motion to postpone approval of the bill of exceptions until the lost document could be restored or its significance made a matter of record. That part of the motion proposing postponement was overruled, but not until testimony had been heard. It is incorporated in a supplemental bill of exceptions.\nTo show that Bailie had a general intent to leave his property to a charitable institution like Levi Memorial Hospital, the plaintiff introduced a will executed January 4, 1947. It had been admitted to probate in Richmond County, Georgia. Certain small bequests (the largest being for $1,000) were made to individuals. Tlien there was direction that \u201call the rest and residue\u201d be entrusted to Citizens and Southern National Bank, two cousins, and a friend. These, as trustees, were told to select, as soon as practicable, but not later than five years after the testator\u2019s death, \u201c. . . the particular hospital or hospitals [the trustees], in the exercise of their uncontrolled discretion, shall [think] best fitted and equipped to receive, manage, and utilize the property of the trust estate for the charitable purposes herein expressed. ...\u201d\nIn addition to the bonds, Bailie owned considerable property, but appellant does not contend that the so-called gift passed anything but the money, and securities itemized by Caruth.\n\u25a0 The motion for a new trial lists seventeen mistakes the Court is alleged to have made. These are summarized by counsel for appellant in their contention that, although there were factual questions for the jury\u2019s consideration, erroneous instructions were prejudicial.\nWhether the rule applicable to gifts inter vivos or to gifts causa mortis is applied, appellant insists it should prevail to the extent of a reversal of the judgment with1 an order that the cause be retried.\nIt is first argued that Bailie effectively delivered the property by surrendering all dominion over it; also that there was acceptance by Miss Kaplan as agent of the Hospital Association. \u201cHaving\u201d, as appellant\u2019s attorneys have expressed it, \u201csampled the generosity, kindness, and efficiency of appellant\u2019s nurses and physicians, [Bailie] may have figured that he could find no safer haven. The charts in the envelope made exhibits to Miss Kaplan\u2019s testimony show that he received all the attention that a millionaire would have received at Johns Hopkins Hospital\u201d. It is then contended that the transaction contained all of the elements to support a gift causa mortis. But, it is said, Miss Kaplan construed the gift as having been made in anticipation of death, for her testimony was that if Bailie had recovered, or if he liad left tlie hospital in any circumstances and had requested return of the suitcases, they would have been given to him, and so would the money. Cases cited in support of appellant\u2019s theory are listed in the margin.\nAppellant conceded that three of the instructions \u201ccorrectly and fully\u201d stated the law, but thinks error was committed when certain expressions were used in Instructions 2, 3, 4, 5, 6, and 7. In substance the jury was told that actual delivery was essential to a completed gift, made in anticipation of death, and that intent to presently pass title must exist at the time of delivery. Again, it is argued that if the subject matter of a donor\u2019s bounty is knowingly placed within a container, and physical delivery of tlie container is consummated, it is not essential to a completed gift subsequently made that the property be again delivered.\nInstruction No. 5 is the principal target of appellant\u2019s attack. It alternatively deals with gifts causa mortis, and inter vivos. After mentioning and defining, the instruction says that in either case designation must be with distinctness, \u201c. . . and it must also be established that the property was presently to pass, and that the intention was carried into effect by an actual or effective delivery. Delivery before death is as essential to a gift causa mortis as it is to a gift inter vivos, and the same rules as to delivery are applicable to both\u201d.\nEssentials of a gift causa mortis were stressed in Newton et al. v. Snyder, Adm\u2019x., 44 Ark. 42, 51 Am. Rep. 587, where Chief Justice Cocicrill, in speaking for the Court, said that in order to establish such a gift it is essential the evidence show \u201cnot only that the person in extremis designated with proper distinctness the thing to be given and the person who is to receive it, but it must establish also that the property was presently to pass, and that the intention was carried into effect by an actual or effective delivery. In this respect there is no difference between gifts inter vivos and causa mortis.\u201d\nIn Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507, the two classes of gifts were considered. It was held that a husband\u2019s attempt to convey property causa mortis was subject to the widow\u2019s right of dower. The opinion holds the better rule to be that although delivery has been made, property rights do not become vested until the donor\u2019s death, \u201c. . . that is, the donor\u2019s death is a condition precedent to the vesting of title.\u201d The same rule was mentioned in Ammon v. Martin, 59 Ark. 191, 26 S. W. 826 \u2014 two of the cases cited by appellant. Both are referred to in Harmon v. Harmon, 131 Ark. 501, 199 S. W. 553, also cited by appellant.\nOf the instructions complained of, only No. 5 expressly mentions gifts causa mortis. Nos. 4 and 6 use the term \u2018\u2018inter vivos\u201d, and Nos. 2, 3 and 7 employ other words.\nIf it be conceded that Hatcher v. Buford, Ammon v. Martin, and Harmon v. Harmon modified the rule announced in Newton v. Snyder, and that error would have been committed if \u201cimmediately\u201d, or \u201csimultaneously\u201d, or \u201cat once\u201d had lent emphasis to Instruction No. 5, the fact remains that this was not done. Instead, the jury was told it was incumbent upon the .plaintiff \u201c. . . to establish that the property was presently to pass, and that the intention was carried into effect by an actual or effective delivery\u201d.\nWord references disclose that \u201cpresently\u201d has two meanings: (1) \u201cNow, at the time spoken of\u201d; (2) Immediately; by and by; in a little time\u201d. See Century Dictionary. \u201cHim therefore I hope to send presently, so soon as I shall see how it will go with me\u201d. \u2014 Paul\u2019s Epistle to the Philippians, 2:23.\nAppellant\u2019s specific objection to Instruction No. 5 is not a contention that \u201cpresently\u201d was an improper expression because it meant now, or immediately; therefore, since the use of the word as a period of time is not of necessity limited to the restricted construction appellant contends for, it cannot be said that the jury was misinformed.\nIf the jury regarded as genuine the matter relating to bonds, interlined on the inventory prepared by Miss Word, it had a right to determine the sense in which \u201cAdministrator\u201d was used, the request being that \u201c . . . these [bonds] be given to the Administrator\u201d. If mentally capable of making testamentary decisions at that time, Bailie knew, of course, that he had recently executed a will, and that his affairs would pass through administration. Appellant introduced witnesses who testified that Miss Kaplan, the superintendent, was spoken of as Administrator, and that perhaps Bailie knew this and had her in mind when the wish was expressed \u2014 if in fact the act was a conscious one. But in any event construction of the language was a disputed question. If Bailie intended that the bonds should go to a legal representative\u2014 \u201cAdministrator\u201d \u2014 after his death, that purpose was in conflict with appellant\u2019s contentions that either a completed or conditional gift was made.\nWhile the case presents many unusual phases, our view is that appellant was not prejudiced by the instructions. Factual issues were adversely determined by a jury, and we are unable to say that appellant was denied its legal rights.\nAffirmed.\nBy answer and cross complaint it was shown that the bonds were held by the Arkansas Trust Co., a local banking institution.\nAmmon v. Martin, 59 Ark. 191, 26 S. W. 826; Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507; Lowe v. Harb, 93 Ark. 548, 125 S. W. 630; Gordon v. Clark, 149 Ark. 173, 232 S. W. 19; Carter v. Greenway, 152 Ark. 339, 238 S. W. 65; Ellsworth v. Carnes, 204 Ark. 756, 165 S. W. 2d 57; Anderson v. Lord, 87 N. H. 474, 183 Atl. 269, 103 A. L. R. 1108, note at p. 1111; Northern Trust Co. v. Swartz, 309 Ill. 586, 141 N. E. 433; In re Mills Estate, 172 App. Div. 530, 158 N. Y. S. 1100, affirmed 219 N. Y. 642, 114 N. E. 1072; Laig v. Pelus, 198 Miss. 185, 22 So. 2d 239; Burt v. Second National Bank, 241 Mich. 216, 217 N. W. 71; Champney v. Blanchard, 39 N. Y. 111; Caylor v. Caytor, 22nd Ind. App. 666, 52 N. E. 465, 72 Am. St. Rep. 331; Cain v. Moon, (1896) 2 Q. B. 283.", "type": "majority", "author": "(trtuein Smith, Chief Justice." } ], "attorneys": [ "Scott Wood and Leland F. Leathermcm, for appellant.", "Mallory, Rasmussen & Johnson; Wootton, Land & Matthews and Fulcher & Fulcher, for appellee." ], "corrections": "", "head_matter": "Leo N. Levi Memorial Hospital Association v. Caruth, Administrator.\n4-8462\n208 S. W. 2d 983\nOpinion delivered March 8, 1948.\nScott Wood and Leland F. Leathermcm, for appellant.\nMallory, Rasmussen & Johnson; Wootton, Land & Matthews and Fulcher & Fulcher, for appellee." }, "file_name": "0001-01", "first_page_order": 17, "last_page_order": 25 }