Feltz v. Pavlik

• Decision Date: 21 April 1953
• Docket Number: No. 28608,28608
• Citation: 257 S.W.2d 214
• Parties: FELTZ v. PAVLIK et al.
• Court: Missouri Court of Appeals

Page 214

257 S.W.2d 214

FELTZ v. PAVLIK et al.

No. 28608.

St. Louis Court of Appeals, Missouri.

April 21, 1953.

Carl A. Enger and James J. McMullen, St. Louis, for appellants.

Charles A. Neumann and William Kohn, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action by Viola Pavlik to have a fund on deposit in the Gravois Bank of St. Louis County in the names of Frank and Clara Pavlik declared to be the property of plaintiff. Viola Pavlik sued Frank and Clara Pavlik, husband and wife, and the bank, alleging that she and her husband William Pavlik had a joint checking account in both their names at the Jefferson-Gravois Bank of St. Louis; that Frank drew out the balance of $3,900 in that account without her knowledge or consent, opened a new joint account in the name of Frank and William, and after that account had been checked down to $3,542.07, wrongfully placed $3,500 of those funds in a joint account in the names of Frank and Clara, all prior to the death of William and without the knowledge or consent of plaintiff, who, as survivor of William, is entitled to the proceeds of the joint account originally held in the names of herself and William. Tried to the court it was adjudged and decreed that the balance of $3,347.85 on deposit in the bank in the names of Frank and Clara rightfully and legally is the property of Viola Pavlik. The court directed defendants to turn the fund over to her. All three defendants appealed. Thereafter Viola Pavlik assigned the judgment to her sister Eleanora Feltz, respondent herein.

In 1945 William and Viola Pavlik were married. Shortly before the marriage they bought a farm for $5,600, taking title in the names of 'William A. Pavlik and Viola Pavlik, his wife.' Viola contributed $2,000 of her own money toward the down payment of $3,000. Further payments were made in installments from their joint savings. They both worked steadily, William earning $70 a week as a beer bottler, Viola earning $44 to $50 a week at a printing firm. They lived frugally, denying themselves some of the necessities of life in order to increase their savings. In 1945 they established a joint account at Industrial Bank & Trust Company in the name of 'Mrs. Viola Pavlik or William A. Pavlik (husband) either or the survivor' and made small additions thereto from their joint earnings more or less regularly through the years of their married life. In February, 1948 a joint savings account was opened by them at the Jefferson-Gravois Bank of St. Louis, in the names of 'William A. Pavlik or Viola Pavlik, either or survivor' and from time to time they made small deposits therein. In September, 1949 both parties quit working on account of sickness. Before his sickness Viola at no time objected to her husband drawing any money out of the accounts. He had the same privileges she had. They did not consult one another about withdrawals. In November, 1949 they sold their farm, together with livestock and equipment which they had purchased out of their joint savings, for the sum of $10,500. On November 2, 1949 $5,000 of this sum was deposited in the joint savings account at the Jefferson-Gravois Bank of St. Louis. On the same day $5,500 was deposited in the joint Industrial Bank & Trust Company account. After they quit working, it was necessary to draw on the savings account at the Jefferson-Gravois Bank of St. Louis for living expenses and for the payment of doctor and hospital bills. Between November 4, 1949 and December 22, 1950 approximately ten withdrawals were made from this account, half of them by Viola and the other half by William, for these purposes. On December 11, 1950 William Pavlik went to live at the home of his brother Frank. Viola stayed at her mother's home. This arrangement was necessitated by their sickness, neither being able to care for the other, and there being no room for both at either the mother's or the brother's house. To avoid the necessity of visiting the bank to make withdrawals, and for the convenience of both of them, the parties on December 22, 1950 drew the balance of $4,100 from their joint savings account at the Jefferson-Gravois Bank of St. Louis and redeposited it there on the same day in a joint checking account in the names of 'William A. Pavlik or Viola Pavlik,' in form payable to 'either or the survivor,' under a depositor's agreement signed by both of them in which they agreed with each other and the bank that all sums deposited in said account 'are and shall be the joint moneys or property of the undersigned, payable on the check of either or the survivor, and that the amount to the credit of said account on the death of either is and shall be the sole and absolute property of the survivor and payable on the check of such survivor' and that the bank 'may pay all checks drawn against said account by either of the undersigned * * *.' At 5 a. m. on January 8, 1951 William Pavlik was taken to a hospital in a critical condition. He was placed under oxygen. On the same day, without the knowledge or consent of Viola Pavlik, $3,900 was drawn out of the joint checking account by check dated January 8, 1951 payable to Frank W. Pavlik and signed by William Pavlik. The body of the check was filled out by Frank Pavlik. It was endorsed by Frank and deposited in a new checking account established that day in Frank's name. On January 15, 1951 William's name was added to Frank's account as depositor. On January 16, 1951 a check for $200 and on January 22 another check for $150 were drawn on this account. On February 16, 1951 the balance of $3,542.07 remaining in the joint checking account of Frank and William was drawn out by check in Frank's handwriting payable to himself and signed by him. This withdrawal was also accomplished without the knowledge or consent of Viola Pavlik. Three days later Frank cashed the bank check which was issued to him February 16 for $3,542.07 and deposited $3,400 thereof to the joint account of Frank Pavlik and Clara Pavlik, his wife. On February 23, 1951 William Pavlik died.

On January 18, 1951 William issued a check drawn on the checking account in payment of a hospital bill. That check was returned 'account closed.' It was shortly thereafter that Viola learned that the joint checking account at the Jefferson-Gravois Bank of St. Louis had been exhausted. After she learned this fact she drew the then balance of $4,697 out of the joint account at Industrial Bank & Trust Company and placed it in a checking account in her own individual name, for fear that she would be left without funds.

At the trial appellant Frank Pavlik offered to prove that he was informed by his brother William, shortly prior to William's death, of the existence of the joint account in the Jefferson-Gravois Bank of St. Louis in the names of Viola and William A. Pavlik; that it was the intention and wish of William that the joint account be closed out and the balance of the funds therein be withdrawn and transferred to a new joint checking account in the same bank in the names of Frank and William; that William did not want any of the money to go to Viola; that William requested and demanded that Frank write out the check on the joint account of Viola and William for that purpose; and that pursuant to William's request this was done by Frank. The offer of proof was rejected by the trial court on the ground that it violated the dead man's statute.

It stands undisputed that Viola Pavlik did not consent to or authorize the act of William Pavlik in issuing a check to Frank Pavlik for the balance remaining in the account, knew nothing whatever about this transaction until some time after it occurred, and did not ratify the transaction.

In support of their assignment that the court erred in entering its decree for plaintiff, appellants say that the petition does not state a cause of action in equity; that this is an action at law; and that while plaintiff alleged that Frank drew the money out of the joint account of William and Viola she failed to prove it but on the contrary proved that William signed the check by which the withdrawal was effected.

Appellants cite no case and offer no sound reason why the petition does not state a cause of action in equity. We hold that a claim upon which relief could be granted is stated.

The point that there is a variance between the pleading and proof is ruled against appellants for the reason that the evidence was admitted without objection, the issue was tried by the consent of the parties, and now should be treated as if it had been raised in the pleadings. Section 509.500 RSMo 1949, V.A.M.S.; Schroeder v. Zykan, Mo.App., 255 S.W.2d 105; Scott v. Missouri Ins. Co., Mo.App., 246 S.W.2d 349, loc. cit. 354; Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331, loc. cit. 335.

On the merits, appellants assert that under the agreement between William, Viola and the bank the funds were subject to the order of either; that William had a perfect right to issue the check payable to the order of his brother; that when he did so prior to William's death the account was cleared, and plaintiff's right thereto terminated, thereby eliminating any right in her to claim as a survivor of William; that there was no allegation or proof of incompetence on the part of William or undue influence, duress or fraud exercised upon him; and that the funds were not held as tenants by the entirety. Appellants further point out that while William appropriated one joint account in the sum of $3,900 at one bank, plaintiff appropriated the other in the sum of $4,697.58, and the inference seems to be that this more than sequared their accounts.

The principal question for decision is whether the act of William Pavlik in withdrawing all the moneys in the joint checking account by check payable to his brother without obtaining the prior consent of his wife Viola was effective to terminate the joint tenancy and the rights, including survivorship rights, of the wife...