Clapper v. Lakin

• Decision Date: 20 December 1938
• Docket Number: 34402
• Parties: E. J. Clapper, Retta Clapper, Lola Clapper Wilson, Lillie Beavers and Sarah Ellen Collins v. Lyman Lakin, Nena Litton, and Belle Lakin, Widow, Archie Lakin, Raymond Lakin, Phoebe Shelton, Children and Heirs-At-Law of C. E. Lakin, and Myrtle Hanes, Mary Lakin, Annie Lakin, Freddie Lakin, Johnny Lakin, Henry Lakin, Alma Endicott, Thornton Butler, Freeman Butler, Mrs. Ida Foster, W. Osborn Clapper, T. Chester Clapper, Othal Clapper, Opal Clapper, Jerry Clapper, Jr., Ethel Clapper Hollowell, and all the unknown Consorts, Heirs, Devisees, Donees, Alienees, and the Immediate Mesne or Remote, Voluntary or Involuntary Grantees of the Following Named Deceased Person, Namely To-Wit: Merit Clapper, Phoebe Clapper Lakin, Hulda Clapper Lakin, Mary Clapper Butler, Henry Clapper, Jr., Frances Clapper Manning, Freeman Clapper, Calvin Clapper and Jerry Clapper, Sr., Defendants, Lyman Lakin, Nena Litton, C. E. Lakin and Myrtle Hanes, Appellants
• Court: Missouri Supreme Court

123 S.W.2d 27

343 Mo. 710

E. J. Clapper, Retta Clapper, Lola Clapper Wilson, Lillie Beavers and Sarah Ellen Collins v. Lyman Lakin, Nena Litton, and Belle Lakin, Widow, Archie Lakin, Raymond Lakin, Phoebe Shelton, Children and Heirs-At-Law of C. E. Lakin, and Myrtle Hanes, Mary Lakin, Annie Lakin, Freddie Lakin, Johnny Lakin, Henry Lakin, Alma Endicott, Thornton Butler, Freeman Butler, Mrs. Ida Foster, W. Osborn Clapper, T. Chester Clapper, Othal Clapper, Opal Clapper, Jerry Clapper, Jr., Ethel Clapper Hollowell, and all the unknown Consorts, Heirs, Devisees, Donees, Alienees, and the Immediate Mesne or Remote, Voluntary or Involuntary Grantees of the Following Named Deceased Person, Namely To-Wit: Merit Clapper, Phoebe Clapper Lakin, Hulda Clapper Lakin, Mary Clapper Butler, Henry Clapper, Jr., Frances Clapper Manning, Freeman Clapper, Calvin Clapper and Jerry Clapper, Sr., Defendants, Lyman Lakin, Nena Litton, C. E. Lakin and Myrtle Hanes, Appellants

No. 34402

Supreme Court of Missouri

December 20, 1938

Appeal from McDonald Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

Lon Kelley and Gardner & Gardner for appellants.

(1) The court erred in overruling defendants' demurrer at the close of all the evidence. Mooney v. Mooney, 244 Mo 372, 148 S.W. 896; 23 C. J. 49; Fritz v. St. Louis, Iron Mountain, 148 S.W. 78, 243 Mo. 62; Frame v. K. C C. & S. Ry. Co., 209 S.W. 318; Farmer's Elevator & Grain Co. V. Hines, 243 S.W. 140, 294 Mo. 639; Lampe v. Franklin Amer. Tr. Co., 339 Mo. 361, 96 S.W.2d 710; Epstein v. K. C. Pub. Serv. Co., 78 S.W.2d 536; Osborne v. McDonald, 159 F. 794. (a) The admission by Lillie Beavers that she was 69 at the time of the trial, which would make her born the same year as Merit Clapper, destroys plaintiffs' case. McCoy v. Home Oil & Gas Co., 60 S.W.2d 724; Hayes v. Kresge Co., 100 S.W.2d 328; Smuzynski v. E. St. L. Ry. Co., 230 Mo.App. 1095, 93 S.W.2d 1068; McCoy v. Home Oil & Gas Co., 48 S.W.2d 119; Mulcahey v. Brotherhood of Ry. Trainmen, 229 Mo.App. 610, 79 S.W.2d 765; Madden v. Red Line Service, 76 S.W.2d 438; Steele v. K. C. S. Ry. Co., 265 Mo. 117, 175 S.W. 177; K. C. Granite Co. v. Jordan, 316 Mo. 1118, 295 S.W. 765. (b) Where record or other positive evidence contradicts and destroys plaintiffs' case, even though supported by the verdict of the jury, the judgment cannot stand. Kazee v. K. C. Life Ins. Co., 217 S.W. 339; Girvin v. Met. Life Ins. Co., 75 S.W.2d 596; Yarber v. Connecticut Fire Ins. Co., 10 S.W.2d 957; Jeans v. Morrison, 99 Mo.App. 208, 73 S.W. 235; Neale v. Cunningham Store Co., 149 Mo.App. 53, 130 S.W. 503; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. 441; Darlington Lbr. Co. v. Mo. Pac., 243 Mo. 224, 147 S.W. 1058; Markey v. Markey, 108 Iowa 373, 79 N.W. 258; Sanford's Estate, 4 Cal. 12; Lind v. Burke, 56 Neb. 785, 77 N.W. 444; Pina v. Peck, 31 Cal. 359. (2) The court erred in giving Instructions 2 and 3 at the request of plaintiffs. These instructions were erroneous in that, (a) The burden of proof was upon plaintiffs to show that they were heirs at law of Merit Clapper. Buckhorn v. Greenwood, 208 S.W. 59; Reed-Smith v. Lockridge, 65 P.2d 345; In re Leslie's Estate, 161 N.Y.S. 790, 175 A.D. 108; In re Kennedy, 143 N.Y.S. 404; In re Colbert's Estate, 153 P. 1026; King v. Byrne, 122 S.W. 96; R. S. 1929, sec. 1520; Hemmelberger-Harrison Lbr. Co. v. Jones, 119 S.W. 366, 220 Mo. 190; King v. Theis, 199 S.W. 183, 272 Mo. 416. (b) There is no presumption of legitimacy in this case. 7 C. J. 940, sec. 5; State ex rel. Burkhart v. Ferguson, 174 N.W. 934, 8 A. L. R. 426; Whipple v. McKew, 60 S.W.2d 1006; Williams v. Ketchum, 13 S.W.2d 605; Blackburn v. Crawford's Lessee, 18 L.Ed. 186, 194, 70 U.S. 196, 3 Wall. 186; State v. Shoemaker, 17 N.W. 589. The error in this respect was not cured by defendant's Instruction 9. State v. Shain, 108 S.W.2d 351; Patterson v. Evans, 254 Mo. 293, 162 S.W. 179. (c) Even if a presumption of legitimacy obtains, which it does not, yet the "burden of proof" did not shift in this case, but remained with plaintiffs throughout the trial. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557. And, this error was not cured by defendants' Instruction 10.

A.R. Dunn and Ruark & Ruark for respondents; Frank Ertell for Thornton Butler, Freeman Butler and Alma Endicott.

(1) Appellants' first assignment of error, Point A, is: "The court erred in overruling defendants' demurrer at the close of all the evidence." The answer is that the appellants did not present to the court any demurrer at the close of all the evidence. Plaintiffs did ask for a directed verdict, but the defendants did not. The appellants made a verbal request for a directed verdict, but no written request was made and no instruction tendered to the court. A demurrer or request for a directed verdict must be in writing. Sec. 937, R. S. 1929; Lintz v. Atlanta Ins. Co., 226 Mo.App. 1087, 49 S.W.2d 675; Dusky v. Kansas City, 227 Mo.App. 849, 58 S.W.2d 768; Chandler v. Guenther, 96 S.W.2d 638. And where defendants file no written demurrer and offer evidence and submit instructions upon an issue, the sufficiency of the plaintiffs' evidence to make a case is waived. Williams v. St. L. Pub. Serv. Co., 335 Mo. 335, 73 S.W.2d 199; Clay v. Owens, 338 Mo. 1061, 93 S.W.2d 914; Pulsifer v. Albany, 226 Mo.App. 529, 47 S.W.2d 233; Chandler v. Guenther, 96 S.W.2d 638. Point B of first assignment of error is: "The admission by Lillie Beavers that she was 69 at the time of the trial, which would make her born the same year as Merit Clapper, destroys plaintiffs' case." That is, the statement of one plaintiff as a witness is binding not only upon her but also upon her coplaintiffs and also upon the defendants who have an interest in the case. Such a statement or admission is only prima facie binding upon the person making it. Haddow v. St. Louis Serv. Co., 38 S.W.2d 284; Norris v. Railroad Co., 239 Mo. 695. A party is not so bound by forgetfulness or mistake. Steele v. Railroad, 265 Mo. 97. (2) There is a presumption that a recognized child is legitimate. In re Smith's Est., 242 N.Y.S. 464, 136 Misc. 863; 7 C. J., p. 949. The law presumes legitimacy of child until contrary is shown. Wilson v. Wilson, 65 S.W.2d 691; In re Blackwood's Est., 270 N.Y.S. 613; In re Kotlick's Est., 274 N.Y.S. 204; Defferari v. Terry, 68 S.W.2d 253. After a long time, proof that a person is the child of a certain man and woman, and was so recognized by parents and members of the family, raises a presumption of legitimacy. Locust v. Caruthers, 100 P. 520. Subdivision A of division II is as follows: "The burden of proof was upon plaintiffs to show that they were heirs at law of Merit Clapper." "Strong presumptions of fact, on the contrary, shift the burden of proof even though the evidence to rebut them involve the proving of a negative." 2 Best on Evidence, p. 578, sec. 321; 1 Greenleaf on Evidence, secs. 33-35. And such is the holding of this court, even to the extent of proving a negative. Boyer v. Dively, 58 Mo. 510; Johnson v. Railroad Co., 203 Mo. 381; Griggs v. Pullman Co., 40 S.W.2d 464; Nelson v. Jones, 245 Mo. 579; Woods v. Am. Coal Co., 25 S.W.2d 144; Johnson v. Johnson, 30 Mo. 81; Maier v. Brock, 222 Mo. 74; Klien v. Laudman, 29 Mo. 259; Phillips v. Wilson, 298 Mo. 186; Jackson v. Phalen, 237 Mo. 142. (3) The uncertainty and frailty of human memory to recall conversations in the dim past has often come under the observation of the courts. 22 C. J., p. 289, sec. 318; Whitely v. Babcock, 202 S.W. 1091; Russell v. Sharpe, 192 Mo. 270; Fanning v. Doan, 139 Mo. 392; McElvain v. McElvain, 171 Mo. 244.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

The petition herein is in two counts; the first is an action (under Sec. 1520, R. S. 1929) to try or determine title to certain lands situate in Newton County and therein described; the second count is an action to partition said lands. The suit was commenced in the Circuit Court of Newton County but went on change of venue to the Circuit Court of McDonald County where a trial was had and the verdict of the jury, upon the sole and determinative issue of fact, being in favor of plaintiffs, judgment was entered on the first count decreeing the title to said lands as alleged and claimed by plaintiffs, and judgment of partition was entered on the second count in accordance with the interest of the parties as so found and decreed. The answering defendants appealed and title to real estate being involved the appeal comes to this court.

The determinative issue is made by the first count the action to try title. It is therein alleged, that the plaintiffs Lillie Beavers and Sarah Ellen Collings, are sisters of Merit Clapper, deceased, that plaintiffs Retta Clapper and Lola Clapper Wilson are the "only children and heirs-at-law of Calvin Clapper, deceased, who was a brother of Merit Clapper, deceased, said Calvin Clapper having predeceased the said Merit Clapper," and that plaintiff E. J. Clapper is a child and heir-at-law of Henry Clapper, Jr., deceased, a brother of the said Merit Clapper deceased, who predeceased the said Merit Clapper; that plaintiffs "are the owners in fee simple of an undivided interest in the" lands described; that they "acquired such undivided interest by descent an inheritance from Merit Clapper, who died intestate in Newton County . . . on the 14th day of October, 1933;" that "at the time of his death, the said Merit Clapper left surviving him no wife or children or father or mother and that at the date of his death the said Merit Clapper was the owner in fee simple of the whole of the real estate," described; that "the said Merit Clapper left surviving him as he only heirs-at-law" the plaintiffs, whose relationship is alleged as stated above, that is, two sisters, a...