Borchers v. Barckers
| Decision Date | 06 June 1911 |
| Citation | 138 S.W. 555,158 Mo.App. 267 |
| Parties | JOHN BORCHERS, JR., Administrator, Appellant, v. HENRY N. BARCKERS et al., Respondents |
| Court | Missouri Court of Appeals |
Submitted on Briefs May 1, 1911
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
Judgment affirmed.
Collins & Chappell for appellant.
(1) The trial court erred in giving defendants' peremptory instruction. (2) The court below erred in permitting the witness H. A. Loevy, to testify. Donnell v. Jung, 81 Mo.App. 511; Waltemar v. Schnick, 102 Mo.App. 133; Green v. Building Co., 196 Mo. 358. (3) The court below erred in admitting in evidence the said assignment, for the reason, that under the terms of the policy, it had not received the assent of the association. (4) The case at bar was properly triable by a jury. Under the statutes of the State of Missouri, the former distinctions between actions at law and suits in equity are abolished. There is (R. S. of Mo 1909, sec. 1727) but one form of action denominated a civil action. A trial (R. S. of Mo. 1909, sec. 1967) is the judicial examination of the issues between the parties whether they be issues of law or of fact. An issue of fact (R. S. of Mo. 1909, sec. 1968) in an action for the recovery of money only or of specific real or personal property, must be tried by a jury. This was an action for the recovery of money only, or at most for the recovery of specific personal property, to-wit: the proceeds of the insurance policy. This was in no sense a suit in equity, and even if it was, being a suit for the recovery of money only or specific personal property, the issues of fact involved were triable by a jury.
H. A. Loevy for respondent.
(1) The legal test is the capacity of the grantor to understand the nature and effect of the transaction. Cuttler v. Zollinger, 117 Mo. 92; Parsons on Contracts (7 Ed.), 383; McKissock v. Groom, 148 Mo. 459; Chadwell v. Reed, 198 Mo. 382. (2) The law requires something more definite and tangible than mere indefinite generalities to destroy or overbalance the presumption of capacity. McFadden v. Catron, 138 Mo. 197; Doherty v. Gilmore, 136 Mo. 421; Giboney v. Foster, 230 Mo. 106. (3) The notary was a competent witness. Borchers v. Barckers, 143 Mo.App. 83. (4) This point is that the court erred in admitting the assignment because forsooth the insurance company had not consented to the assignment. The company could, if sued on the policy, have made this objection. Appellant certainly cannot. This provision was wholly for the company's benefit and it could and did waive it. (5) The court did not err in sustaining objection to the question, "What did you hear your father talk about when you met?" Lower v. Coal Co., 142 Mo. 353. (6) The case was one in equity. Blood v. Woodmen, 140 Mo.App. 542; Duke v. Duke, 93 Mo.App. 251.
This is the second appeal of this case to this court; as it was here before and is reported 143 Mo.App. 72, it was on the appeal of defendant Henry N. Barckers; now it is here on the appeal of plaintiff. It was reversed by this court for error in an instruction on undue influence, this court holding that there was no evidence of undue influence in the case. The facts and issues are so fully set out in the report of the case when before us on the first appeal that it is unnecessary to repeat them. The cause was then remanded because it was thought by the court that on careful examination of the testimony, there was evidence, although slight, tending to show a weakened mental condition in deceased and that this question of mental capacity should have been submitted to the jury under the facts then in evidence. On this second trial, the evidence of one of the witnesses for plaintiff, Dr. Martin, a physician, which on the first trial we especially referred to as tending to prove lack of mental capacity on the day the assignment of the policy was made, which was the day the deceased died and when he had lapsed into a semiconscious condition, was not introduced. With that exception the testimony of the other witnesses was substantially as before, except that the testimony of the other witnesses, that of the sisters daughters of the deceased, bearing on the mental capacity of their father, is hardly consistent with that given on the former trial, and certainly is no more persuasive. Neither lived with him; neither was present when he made the assignment; the doctor, who was there present, did not testify at this trial and Mr. Loevy, who was present as notary and took the acknowledgment, testified as to the fact of the acknowledgment and the acts of the father. The court again tried this case with the aid of a jury. As we held before, this is really a case of interpleader and distinctly one that should have been tried as in equity. In such cases it is not error and is within the power of the court, to take the opinion of the jury on any issue of fact, but he is not bound by the finding the jury may make. [Blood v. Sovereign Camp Woodmen of the World, 140 Mo.App. 526, 120 S.W. 700.] It was also within the power of the court, by instructions which it gave, to direct a verdict, which, in effect, was what was done here, for at the conclusion of all the testimony, the court, at the instance of plaintiff, gave two instructions. First, that there is no evidence in the case that at the time John Borchers signed his name to the assignment of the policy read in evidence, he did not have legal capacity to sign the same. Second, that there is no evidence in this case that at the time John Borchers signed his name to the assignment of the policy read in evidence, that he did so through the undue and improper influence of Henry N. Barckers, one of the claimants herein, or any other person. Upon the court giving these instructions, plaintiff took a nonsuit with leave to move to set it aside, and the jury was thereupon discharged from further consideration of the case, plaintiff excepting to this. Treating this as a suit in equity this was an entirely novel and unwarranted proceeding. All that should have been done was to have dismissed plaintiff's suit, and the fund being before the court, as in interpleader, to have disposed of that fund. But upon plaintiff taking a nonsuit with leave, the court entered up judgment that plaintiff take nothing by his suit and further adjudged that the sum of $ 650.30, in the hands of the Missouri Lincoln Trust Company, was at the time this suit was brought, the property of defendant Henry N. Barckers, and it appearing to the court that pending the termination of this suit that sum had been paid by the Trust Company, under execution herein issued, to the sheriff and turned over by the sheriff on or about June 29, 1909, to plaintiff as administrator, the court ordered that that sum, with interest thereon at the rate of six per cent per annum from June 29, 1908, to date, being the sum of $ 72.81 and aggregating $ 723, "be paid by plaintiff administrator to the said Henry N. Barckers or his attorney of record, and it is further considered and adjudged that defendant, Missouri Lincoln Trust Company, go hence without day, and that it and said defendant Barckers recover their costs herein lawfully expended, said costs to be...
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