Campbell v. Hayden

• Decision Date: 03 March 1914
• Citation: 168 S.W. 363,181 Mo.App. 681
• Parties: ROBERT A. CAMPBELL, ADMINISTRATOR, Appellant, v. WILLIAM R. HAYDEN et al., Respondents
• Court: Missouri Court of Appeals

168 S.W. 363

181 Mo.App. 681

ROBERT A. CAMPBELL, ADMINISTRATOR, Appellant, v. WILLIAM R. HAYDEN et al., Respondents

Court of Appeals of Missouri, St. Louis

March 3, 1914

Argued and Submitted February 2, 1914.

Opinion on Motion for Rehearing Filed July 2, 1914.

Rehearing Denied181 Mo.App. 681 at 690.

Appeal from Pike Circuit Court.--Hon. B. H. Dyer, Judge.

AFFIRMED.

Judgment affirmed.

Ball & Ball, David A. Ball and Hostetter & Haley for appellant.

(1) The evidence fails to show any contract made between defendants and deceased in Montana, and fails to show a gift and delivery of decedent's money or property in Montana, as alleged in defendants' answer.Walker v Bohnannan,243 Mo. 119.(2) Having accepted the power of attorney from the deceased, the defendants became trustees of an express trust and the burden of showing a subsequent valid acquisition of the money collected by them thereunder devolved on defendants.All the money gained by defendants by means of their fiduciary relation, whether through the power of attorney or otherwise belonged to the deceased.James v. Groff,157 Mo. 421;Jameson v. Glascock,29 Mo. 191;Bent v. Priest,86 Mo. 475;Ins. Co. v Smith,117 Mo. 295;Newman v. Numan, 152 Mo. 413.

J. H. Blair and Pearson & Pearson for respondent.

(1) This cause comes here on the present appeal, on substantially the same evidence, and the same rulings of the trial court, as the former appeal; hence, the decision of the former appeal is res ad judicata as to all matters arising on this appeal.Campbell, Admr., v. Hayden,164 Mo.App. 262.(2) The general rule is, that legal conclusions announced on a first appeal, whether on the general law, or the law as applied to the concrete facts, become and remain the law of the case, not only upon a retrial, but upon a second appeal.Mangold v. Bacon,237 Mo. 496;Baker v. Railroad,147 Mo. 140;Cherry v. Railroad,61 Mo.App. 303;Steele v. Thompson,38 Mo.App. 312.(3) This cause has been retried in accordance with the rules of the appellate court, announced on the former appeal.No new points are raised by appellant, nor involved in this appeal.For this reason, the judgment should be affirmed.Keith v. Keith,97 Mo. 223;Bank v. Taylor,62 Mo. 338;Railroad v. Commission Co.,89 Mo.App. 182;Burkholder v. Henderson,78 Mo.App. 287;Bolles v. Railroad, 163 Mo.App. 697.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

This is the second appeal of this case.It was here before on the appeal of defendants from an order of the circuit court sustaining a motion for a new trial, a verdict in favor of defendants having been returned.Our court affirmed the action of the trial court.[SeeCampbell, Admr., v. Hayden et al.,164 Mo.App. 252, 145 S.W. 103.]In sustaining the motion for a new trial and setting aside the verdict rendered in the first trial, the circuit court assigned no grounds for its action.Two of the errors assigned in the motion for new trial were that the verdict was against the weight of the evidence, and that the verdict was the result of sympathy, passion and prejudice on the part of the jury.In that casecounsel for appellants contended at the former hearing before us, that there were no grounds for setting aside the verdict, unless on the weight of the evidence, and that as the evidence was all one way that the trial court should not have set aside the verdict as against the weight of the evidence.We held that the case as thus presented cast upon us the burden and duty of an examination of all the testimony to determine whether it was all one way and would admit of but one conclusion.So examining it, we concluded that the testimony was not all one way but was conflicting, conflicting on material matters, to such an extent as to justify the action of the trial court in setting aside the verdict as being against the weight of the evidence.We further held that one of the reasons assigned in the motion for a new trial being that the verdict was the result of passion and prejudice, the determination of that rested so entirely within the observation of the trial judge, and as that might have been a reason for granting a new trial, that we, as an appellate court, would not interfere with his action in setting aside the verdict.Those were the only grounds upon which we sustained the action of the trial court.As the result would be a new trial, we thought it proper to pass upon the action of the trial court in the admission and rejection of certain testimony.Counsel for these present respondents now argue that our judgment in the former case is res judicata in the present action, and that our former decision is "the law of the case."We do not agree that it is res judicata.As to its being "the law of the case," it is so only to a limited extent, namely, the issues being in substance the same and the testimony on the vital point in issue being practically to the same effect and general tenor, we held then, and now repeat, that it was a case for the jury.

A patient examination of the evidence shows that it is practically identical with that given at the former trial on the question of the agreement, with this difference: that the court at this last trial admitted in evidence those parts of certain depositions which had been, as we held, improperly excluded at the former trial.Here two or more former witnesses did not testify, one of them the plaintiff; the testimony of the other merely cumulative of other testimony favorable to defendants.We are therefore warranted in referring to our former decision for a statement of the facts, without having to repeat them here.It is true that this last trial was upon amended pleadings, but the amendments made no real change in the issues, the change being more in form that in substance.Some averments contained in the former reply are now in the amended petition, but these and those of the amended answer left the issue as before, namely, did the decedent, Absolem T. Hays, since deceased, make and enter into a parol contract with his nephews, the defendants, by the terms of which the defendants were to take their uncle to their homes in Pike county, Missouri, and there nurse, care for and support him for the remainder of his life, and that in consideration of such care, etc., and of their agreement to do so, the decedent Absolem T. Hays agreed to and did give to the defendants all of his property and estate.That was the issue formerly tried.That was the issue on this second trial.

The learned counsel for appellant rely upon fifteen grounds for reversal.They not only claim that the judgment should be reversed but ask this court to order the trial court to enter up a judgment in favor of plaintiff as administrator for the whole amount acknowledged to have been received by respondents and for interest.

We will not undertake to pass upon these points in detail, but will endeavor to cover all of them.

The first point is that the evidence fails to show any contract made between defendants and the deceased at Lewistown, in Montana, and fails to show a present gift or delivery of the decedent's money or property, as alleged in defendants' answer.Necessarily the respondents could not testify to what took place between them and their uncle either in Montana or elsewhere, touching this transaction.It is true that the evidence of the witnesses residing in Montana and who did testify as to what had taken place there does not, in itself, prove a contract made between defendants and the deceased in Montana, under and by the terms of which the decedent then and there made a gift or delivery of the decedent's property as alleged in the answer.It does, however, distinctly show that the decedent stated that it was his intention to give to his nephews, these defendants, all of his money and...