verdict, their motion to set aside the verdict and judgment and to have judgment entered in accordance with their motion for a directed verdict must be denied.
It remains to consider defendants' motion for a new trial on the ground that the findings of the jury are against the weight of the evidence. Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 251, 61 S. Ct. 189, 85 L. Ed. 147. In doing so, the trial court is not limited to taking that view of the evidence which is most favorable to the plaintiff. Rather it is the duty of the court to weigh the evidence and all other relevant factors, and the mere fact that there may be evidence to support the plaintiff's claim does not mean that a new trial ought to be denied if the court believes that the jury's findings produce a miscarriage of justice. Magee v. General Motors Corp., 3 Cir., 1954, 213 F.2d 899. There are any number of reasons why a jury's action will not be allowed to stand. It may be that passion or prejudice caused the jury to ignore the controlling evidence in a case or the jury may have reached its conclusion upon the basis of patently false testimony. Under these and other circumstances where the result reached by the jury shocks the court, a new trial must be granted.
The fundamental factual issue in the instant case is whether or not the plaintiff and the decedent entered into a certain bilateral oral contract. The issue is not whether the decedent ever said he would leave the plaintiff some money in his will, but rather whether the decedent promised that he would provide plaintiff with an annual income of $ 7,000 in return for a promise by plaintiff to render companionship and services by way of practical nursing care whenever he requested. The plaintiff says that these promises were exchanged in or about May 1951 following the death of decedent's wife. The decedent, not being alive, cannot give his own version of the matter, and by reason of this fact and the opportunity that exists for the assertion of fabricated claims against decedents' estates the law requires that the party seeking to recover upon an oral agreement to make a bequest establish the existence of the contract by clear and convincing proof.
What is relevant under the circumstances to the issue which must be determined? The testimony of the plaintiff, if permitted as in this case, certainly is relevant, and once having undertaken to relate her story, the inherent consistency of her story, any conflict with the testimony of other witnesses and her demeanor are of the utmost significance. The testimony of persons present when the contract was alleged to have been entered into would naturally be highly relevant, especially if, as the plaintiff indicates, such persons participated in the discussions preliminary to the contract. Since plaintiff's burden is more than a mere preponderance of the evidence, a failure to produce or take the depositions of all such persons without satisfactorily accounting therefor gives rise to a strong inference that their testimony would be unfavorable to the plaintiff. Series Publishers, Inc., v. Greene, App.Div.1950, 9 N.J.Super. 166, 75 A.2d 549. Their testimony cannot be said to be merely corroborative where plaintiff must meet a test of clear and convincing proof. O'Neil v. Bilotta, App.Div.1952, 18 N.J.Super. 82, 86 A.2d 705. Further, conditions contemporaneous with the making of the alleged contract may be relevant, as well as conduct of the parties at that time. Inasmuch as the decedent was only to enjoy the companionship and care of the plaintiff when he so desired, the fact that subsequent to the making of the contract he may never have called on the plaintiff to perform is of little if any importance. The fact that the plaintiff was subsequently in the company of the decedent is of approximately the same significance. Subsequent declarations by the decedent to third parties during conversations in which the plaintiff did not participate have not been accepted as evidence of the existence of a contract. Cramer v. McKinney, 1946, 355 Pa. 202, 49 A.2d 374. Certainly, self-serving declarations by the decedent on that subject are irrelevant and inadmissible. Robertson v. Hackensack Trust Co., 1949, 1 N.J. 304, 63 A.2d 515.
Bearing in mind the foregoing, the relevant evidence may be examined. It would seem appropriate to start with the plaintiff's testimony. Her case in support of the existence of a contract is built upon three major propositions: first, the decedent's physical condition was such as to make it desirable for him to retain someone who could provide him with companionship and care from time to time; second, the plaintiff was concerned principally about her financial security in the future; and third, the plaintiff refused to marry the decedent. These were the factual ingredients which the plaintiff testified on her direct examination gave rise to the making of the alleged contract in or about May 1951. But upon cross-examination, she recanted with respect to each and every one of these fundamentals. The plaintiff admitted that the decedent had no serious ailment until the summer of 1952, a year after the contract was alleged to have been made, and that certainly at least up until the summer of 1952 there was nothing about his physical condition that caused him to require any care from another person. Such admission coincides with the testimony of two doctors who treated the decedent. When confronted with earlier testimony given on deposition with respect to the two other propositions, the plaintiff stated that her earlier version of the facts was true. Upon deposition she had stated that she had never discussed the matter of her financial security to any great extent with the decedent, and she had admitted that in and after May 1951 she and the decedent were definitely contemplating marriage. These inconsistencies in the plaintiff's testimony cannot be brushed aside since they go to the very heart of the plaintiff's case and deal with watters which are supposedly the point of origin of the alleged agreement. Nor can these inconsistencies be reconciled, for they involve facts which the plaintiff surely could not have forgotten one day and remembered another. Aside from the foregoing, there are several conflicts between her testimony and the testimony of witnesses called both by her and by the defendants. The matters involved are peripheral and no more will be said than that upon any reasonable view of the evidence the conflicts must be resolved against the plaintiff. These inconsistencies and conflicts, taken all together, force a conclusion, not dispelled by the plaintiff's pleasant appearance, that she has implemented truth with fiction.
The plaintiff testified that Mr. and Mrs. Levins were present and participated in conversations leading to the making of the alleged agreement. Although plaintiff indicated the Levins were in Florida, no satisfactory explanation was given for failure to take their depositions. The result is a strong inference that their testimony would be to the effect that no agreement was made.
In considering the conditions which existed in or about May 1951, it is clear that following the death of his wife in April of that year, the decedent made arrangements to move into an apartment in the same building with apartments occupied by his daughter and his son, of whom he was very fond. Under such circumstances, it taxes credulity that the decedent would have entered into a lawful and therefore enforceable agreement for companionship and nursing care with someone who, according to the plaintiff's testimony, was objectionable to the decedent's children.
The testimony of the witnesses called by the plaintiff added little if any relevant evidence. Statements which were reported to have been made by decedent in the presence of the plaintiff were completely consistent with nothing more than an intent to leave money to the plaintiff. A testator's failure to formalize a beneficent intent does not, of course, give rise to an action for damages.
The finding by the jury that the plaintiff and the decedent entered into the contract sued upon is manifestly against the weight of the credible evidence. Were plaintiff's burden a mere preponderance of the evidence a new trial would have to be granted to prevent a miscarriage of justice. A fortiori such will be the action of the court when, as here, the plaintiff's proof must be clear and convincing.
An appropriate order may be submitted.