O'Donnell v. First National Bank

JENNINGS, Justice (specially concurring). Although I concur in the result of this case, I cannot agree with the reasoning of the majority in reaching that result. The majority state “we have read and reread the transcript of the evidence and the deposition of Dr. Frazier and we can find no direct evidence whatever even tending to prove fraud, duress, undue influence or a failure of consideration * * * nor can •we find any evidence * * * that the procurement of said deed of conveyance was part of a scheme or design to defraud decedent out of her property, and there is no circumstantial evidence at the time the transaction took place to support such claims or any of them.” (Emphasis original.) In my opinion the record is replete with evidence of a scheme or design to defraud decedent out of her property. A review of the record reveals the following: Dr. Frazier was called to decedent’s home December 27, 1954. The following day he had her removed to the Mesa Sanitarium. Dr. Frazier then notified decedent’s brother, T. P. Skeen (by letter dated January 1, 1955), of decedent’s condition. By January 4, 1955 decedent had told Dr. Frazier that she had no way of paying her medical and hospital expenses other than by selling her home. She was very concerned about how she would pay for her medical expenses as well as her living expenses. On January 5, 1955, Dr. Frazier received a letter from Mr. Skeen in reply to his letter of January 1, *30 1955, the pertinent part of which reads as follows: “Kindly see to it that Mrs. Johnson is provided every comfort that she may desire or accept, and I will see to it that the expenses are paid. Do not, however, communicate to her the fact that I am making this offer, as she is extremely independent and may refuse assistance * * *. “If you know or can * * * ascertain what her real circumstances are, I would appreciate your advising me as to the same, as it will enable me to make proper provisions for her.” (Emphasis mine.) 1 On January 17, 1955, Dr. Frazier addressed a letter to Mr. Skeen stating that he was doing so “without your sister’s knowledge or consent.” It read in part: “As you said we have found Electa decidedly independent * * *. “Finances have been our big problem. * * * "We had sought to liquidate her home on a basis that would guarantee her care for as long as she should live. This was blocked by the Welfare Department, who insisted upon a cash sale at their appraisal of $1700.00, or else her $70.00 pension would be stopped. There is no prospect that such a sale could be realized, so no doubt the property will remain idle indefinitely, and in the end pass to the state. “We have thus been forced to transfer her to the County Hospital status. Probably she can be retained at their expense in her present location. If so it will not be possible to provide her the level of care that is possible on a private status. In event you care to supplement the county allowa/nce, say to the extent of fifty dollars a month we will arrange to maintain her essentially as she has been in the past two weeks. My fee up to this point is $153.00, and will henceforth be somewhat less, for all the diagnostic work is now over. * * * Anything you can send me on account will be greatly appreciated.” (Emphasis mine.) A deed was executed by decedent on February 8, 1955 which conveyed the real estate involved in this litigation to the O’Donnells 2 who acted as strawmen for Dr. Frazier. This was done pursuant to the alleged contract whereby it was to be payment for “professional care” (to the limit of Dr. Frazier’s personal ability), room and board for as many days, months, or years as decedent should survive in the Mesa Sanit *31 arium. 3 The O’Donnells executed a deed conveying the property to Dr. Frazier on February 26, 1955 4 Decedent was operated on February 14, 1955 and on February 16, 1955 Skeen wrote Dr. Frazier stating that he and his brothers would send the money down at once. 5 Then on February 19, 1955 Skeen again wrote Dr. Frazier stating: “I am enclosing my check for $100 to meet any temporary small expenses you are put to, and I ask you to send me an itemized statement of all expenses that Dr. Wood estimated to be about $700 * * * “I assume you will keep her in the rest home for some considerable time, and we would like also to have a statement of just what the expenses in the home will be in excess of her pension.” Dr. Frazier replied to the above letter on February 24, 1955 in which he enclosed a statement which included billing for the hospital, doctors, and Mesa Sanitarium. 6 He stated that his fee ($351.70) covered all that he had done for decedent to date including assistance at surgery and assistance with her affairs. Then on March 14, 1955 Dr. Frazier wrote Skeen in which he stated: “I should like to call your attention to the fact that she [decedent] was obliged to sign a 30-day note to the Southside District Hospital, and that this note is due March 18. Also I am embarrassed with Dr. Wood and Dr. Troutman, the anesthetist. Mrs. Lauck [Mesa SanitariumJ is continuing to extend additional credit each day on her account, which she is not well able to do. * * * I might also like to add that I have a fee which is continuing to grow. Your prompt attention to these matters will be most greatly appreciated, since the delay is leaving me in a difficult and unpleasant predicament.” (Emphasis mine.) 7 In my opinion the above facts manifest a scheme on the part of Dr. Frazier to have *32 decedent’s family pay for her medical and living expenses while he fraudulently appropriated her property for his own purposes. The doctor knew decedent was concerned about paying her own way without help from her family. In addition, he knew the family wanted to provide for her without her knowledge. Thus, the stage was set for the present litigation. I do not doubt, as stated by the trial judge, “that the doctor when this first commenced 8 had any idea of defrauding anybody.” But, as the events progressed the opportunity presented itself for the doctor “to obtain the real estate * * * without consideration” as stated in the court’s finding of fact No. 3. As events progressed the doctor became aware that “neither hand knew what the other was doing,” 9 The decedent did not want her family to know that she was going to convey her property to the doctor in order to provide for herself. Decedent’s family did not want her to know that they were making the arrangements to pay for her expenses. This presented an opportunity for the doctor to obtain the decedent’s property without consideration. Although the trial judge said during the course of the trial “ * * * I am not inferring that the doctor when this first commenced had any idea of defrauding anybody * * * and I find no fraud”, finding of fact No. 3 states “ * * * the said deed was drafted and recorded in furtherance of a scheme and design on the part of the defendant to obtain the real estate * * * without consideration and under the circumstances * * * said deed was made to run to the defendant * * * in furtherance of said scheme to defraud * * * [decedent] of said property.” In my opinion there is ample evidence in the record to support this finding. The statement made by the judge during the course of the trial was made before .he had heard all of the evidence. The majority “believe the consideration of these letters [Dr. Frazier’s] by the learned trial judge constituted the basic error which led him astray.” I do not agree. These letters aid in determining the intent of Dr. Frazier at the time he entered into the agreement with the decedent. The letters indicate a scheme to defraud from the beginning. For, if Dr. Frazier was arranging with decedent to provide for her needs (medical, board, room, etc.), why then did he attempt to collect from decedent’s family for the same services. I think there was not only “any evidence” but that there was reasonable evidence that the procurement of the deed of conveyance was *33 part of a scheme or design to defraud decedent out of her property. However, it is elementary that fraud without damage is not actionable. In re McDonnell’s Estate, 65 Ariz. 248 , 179 P.2d 238 (1947); Moore v. Meyers, 31 Ariz. 347 , 253 P. 626 (1927). In order to secure relief on the basis of fraud the person seeking redress must have been damaged, injured or harmed as a result of the asserted fraud. Benson v. Garrett Investment Company, Inc., 135 Cal.App.2d Supp. 853 , 287 P.2d 405 (1955). Inasmuch as the decedent received essentially what she bargained for she was not injured by the scheme to defraud. For that reason, I concur in the result of this case. . Malcolm F. O’Donnell and Sarah Elizabeth O’Donnell, brother-in-law and sister of Dr. Frazier. . According to the doctor’s own testimony the agreement between the doctor and decedent was not entered into until the last of January or early February. . There was a delay in recording the deeds • — the first deed not being recorded until sometime after the execution of the second deed. . This letter was in reply to a letter sent by Dr. Frazier. . The statement listed the following charges: Hospital Bill $330.70 Dr. Wood (surgeon) 300.00 Dr. Troutman (anesthetist) 55.00 Dr. Frazier 351.70 Mesa Sanitarium 2/8-2/12 @ $5.00 20.00 Drugs 5.00 2/18-2/24 @ $8.00 48.00 $1110.40 Less $100.00 $1010.40 . On February 25, 1955 Dr. Frazier submitted a claim on decedent’s health and accident policy to Pioneer American Insurance Company and on April 4, 1955 was paid $665.35, the whole of which was deposited in his personal account. . Prior to the consummation of the agreement. . In all the doctor’s dealings with the decedent’s family he never once mentioned the fact that he had discussed with decedent a method whereby she would be provided for for life in return for the conveyance of her property to the doctor even after the deed had been executed. Whenever the subject matter of decedent’s property was brought up Dr. Frazier professed ignorance.