Clay v. Owen

• Citation: 93 S.W.2d 914,338 Mo. 1061
• Decision Date: 23 April 1936
• Docket Number: 33351
• Parties: M. L. Clay, Guardian of Minnie Lee Owen, v. Henry J. Owen, Appellant
• Court: United States State Supreme Court of Missouri

93 S.W.2d 914

338 Mo. 1061

M. L. Clay, Guardian of Minnie Lee Owen, v. Henry J. Owen, Appellant

No. 33351

Supreme Court of Missouri

April 23, 1936

Appeal from Clark Circuit Court; Hon. Walter A. Higbee Judge.

Affirmed.

J L. Gutting, William H. Hartzell and B. M Cavanagh for appellant.

Fraud is never presumed. Walsh v. Walsh, 226 S.W. 23; Jones v. Nichols, 280 Mo. 653; Gass v. Evans, 244 Mo. 329. A defendant is not bound to disprove fraud, as the presumption is against the existence of fraud. Thomas v. Scott, 221 Mo. 271; Gass v. Evans, 244 Mo. 329. A mere expression of opinion does not constitute fraud. Brown v. So. Joplin Lead & M. Co., 194 Mo. 681; Wilson v. Jackson, 167 Mo. 135; Dalrymple v. Craig, 149 Mo. 345. The evidence does not show a confidential relationship. Bacon v. Soule, 19 Cal.App. 42, 126 P. 384; 12 C. J. 421, sec. 67. The burden of proof was upon the plaintiff to establish his case by a preponderance of the evidence. Kuerzel v. Stevens, 155 Mo. 280; Marshall v. Ferguson, 94 Mo.App. 175; O'Shea v. Lehr, 182 Mo.App. 676.

J. S. Tall for respondent.

The assignment of error, not definitely and specifically set out in appellant's original brief, is abandoned, and should not be considered by this court. Carradine v. Ford, 187 S.W. 285, 195 Mo.App. 705; McCahon v. Quick Service Laundry Co., 263 S.W. 240; State ex inf. Attorney General v. Parrish, 307 Mo. 461; State ex rel. Life Ins. Co. v. Trimble, 327 Mo. 781; State v. Scott, 214 Mo. 261, 113 S.W. 1069; Natl. Bank of Commerce v. Laughlin, 305 Mo. 8; Porter v. Railroad Co., 325 Mo. 381; Yeck v. Adams, 61 S.W.2d 23; State v. McGuire, 193 Mo. 215, 91 S.W. 939; Bernheimer v. Scott, 228 S.W. 523. The assertion, that the verdict, was against the wrong party, and against the weight of the evidence, indicates there was some evidence, and an admission thereof. State v. McGuire, 193 Mo. 227.

OPINION

Frank, J.

Action by Marion L. Clay, guardian of Minnie Lee Owen, an insane person, to recover from Henry J. Owen a balance alleged to be due on the sale price of certain lands belonging to said Minnie Lee Owen. Plaintiff recovered judgment in the sum of $ 28,900 and defendant appealed.

Henry J. Owen and Minnie Lee Owen were brother and sister. Minnie Lee Owen was a resident of Clark County, Missouri. Marion L. Clay, a resident of that county, was appointed as her guardian. She owned certain real estate in the city of Tampa, Florida. Under our view of the case as presented by the record, an extended statement of the facts is not necessary.

No point is made against the pleadings. The theory of the case is clearly stated in plaintiff's given instruction submitting the cause to the jury. It reads as follows:

"If you find and believe from the greater weight of the evidence that plaintiff as guardian of Minnie Lee Owen, an insane ward, entered into an agreement with the defendant, whereby it was agreed that plaintiff, as such guardian of said ward, should convey to defendant the real property referred to in the evidence at the agreed price of $ 15,000 for the sole purpose of enabling said defendant to sell the same as agent of plaintiff on the open market and that defendant should thereupon account to and pay to plaintiff the full amount of money received therefor less the expenses necessarily incurred in so doing, and if you further find from the evidence that pursuant to such agreement, if you find there was such agreement, plaintiff conveyed said real property to defendant for such purpose and if you further find that after having so acquired title thereto the defendant sold said property at a profit over and above the said sum of $ 15,000 and concealed from plaintiff the fact that he had made such profit and that knowledge of such profit first came to plaintiff less than five years prior to November 18, 1931, then your verdict may be for plaintiff for such sum of money, if any, that you find from the evidence defendant received for such real property over and above the said sum of $ 15,000 after deducting therefrom the necessary expenses incurred by defendant in obtaining title thereto and in reselling the same."

In our judgment, appellant's assignments of error are insufficient to present any question for review by this court. The first assignment is that "The verdict is against the weight of the evidence." It is settled that such an assignment presents nothing for review. We call attention to what we said on that subject in State ex rel. Ward v. Trimble, 327 Mo. 773, 780, 39 S.W.2d 372, 375:

"This assignment amounts to a complaint that under the pleadings and evidence the judgment should have been for defendant, because the weight of the evidence was in favor of defendant. To say that the judgment in favor of plaintiff is against the weight of the evidence, amounts to a concession that there was some evidence in plaintiff's favor. Appellate courts do not pass upon the weight of the evidence. In State v. Scott, 214 Mo. 257, 261, 113 S.W. 1069, we said: 'It is no ground for setting aside the verdict of the jury that it may be against the evidence. It is only in case there is no substantial evidence to support the verdict that this court will interfere.'

"Among the cases holding that an assignment of error of the character in question raises no issue are the following: Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628; Greer v. Carpenter, 323 Mo. 878, 19 S.W.2d 1046-7; Bond v. Williams, 279 Mo. 215, 227, 214 S.W. 202."

The next assignment is that "The verdict is against the law under the evidence." This assignment is likewise insufficient. We have so held in many cases. In Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628, 631, we said:

"Appellant's points VII and VIII are that 'the judgment is for the wrong party' and that 'the judgment is against the evidence, the weight of the evidence and the law under the evidence.' Such assignments of error are indefinite, and, standing alone, have been held objectionable. [Bond v. Williams, 279 Mo. l. c. 227, 214 S.W. 202, 16 A. L. R. 755; Fitzroy v. People's Bank of Cardwell (St. L. Ct. of App.), 234 S.W. 865.] No specific matters are brought to our attention under these points, and they are ruled against appellants."

The third assignment is that "The court erred in overruling the demurrer to the evidence at the close of plaintiff's case on behalf of this defendant."

The trouble with this assignment is that after defendant's demurrer to the evidence at the close of plaintiff's case was overruled, defendant introduced his evidence and at the close of the entire case, without renewing his demurrer to the evidence, voluntarily submitted the case to the jury by requesting and receiving instructions on his behalf. The defendant's refusal to stand upon his demurrer to plaintiff's evidence, followed by introduction of evidence in support of his alleged defense, waived his demurrer to plaintiff's evidence. Since the demurrer to plaintiff's case was waived, it logically follows that the case must be treated as though such demurrer had not been requested. We do not wish to be understood as holding that by the waiver of the demurrer to plaintiff's evidence, the defendant lost the right to question the sufficiency of all the evidence at the close of the entire case. What we do hold is that where a defendant fails to demur to plaintiff's evidence, or having demurred thereto, thereafter waives such demurrer by putting in his own case, he still has the right to insist, that the whole evidence introduced by both sides fails to make a prima facie case for plaintiff. But where, as in the case at bar, he does not do so, but waives his demurrer to plaintiff's evidence by the introduction of evidence in his own behalf, and thereafter asks the court to submit the case to the jury by requesting and receiving instructions, without first questioning the sufficiency of the entire evidence to make a case for the jury, his act in requesting the submission was voluntary. He will not be heard to say that the court erred in complying with his voluntary request.

The case of Pullen v. Hart, 293 Mo. 61, 238...