Gehner v. McPherson

• Decision Date: 05 July 1968
• Docket Number: Nos. 8754,8755,s. 8754
• Citation: 430 S.W.2d 312
• Parties: George GEHNER, Plaintiff-Respondent, v. Robert McPHERSON, Administrator of the Estate of William Backs, Deceased, Defendant-Appellant. Elmer KOTTMEIER, Plaintiff-Respondent, v. Robert McPHERSON, Administrator of the Estate of William Backs, Deceased, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 312

430 S.W.2d 312

George GEHNER, Plaintiff-Respondent, v. Robert McPHERSON, Administrator of the Estate of William

Backs, Deceased, Defendant-Appellant.

Elmer KOTTMEIER, Plaintiff-Respondent, v. Robert McPHERSON, Administrator of the Estate of William

Backs, Deceased, Defendant-Appellant.

Nos. 8754, 8755.

Springfield Court of Appeals, Missouri.

July 5, 1968.

Robert B. McPherson, Greenfield, Warren S. Stafford, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for defendant-appellant.

Arkley W. Frieze, Frieze & Crandall, Carthage, for George Gehner, plaintiff-respondent.

A. D. Moore, Springfield, for Elmer Kottmeier, plaintiff-respondent.

TITUS, Judge.

We have here two cases so near akin they were ordered consolidated on appeal. The issues, as announced in appellant's brief, are whether the Circuit Court of Dade County erred (1) in refusing to open the judgments entered and permit the presentation of additional evidence because of newly discovered evidence or (2) in overruling defendant's motions for a new trial on the ground of newly discovered evidence. Defendant only entreats that 'these causes should be remanded for new trials.' There is no citation of authority to support the first contention and it is not pursued in any manner by argument. We deem that point abandoned. Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393, 400(13). Our energies, therefore, are devoted to deciding if the trial court wrongfully declined the new trial motions.

In January 1967 George Gehner and Elmer Kottmeier filed individual claims against the estate of William Backs, deceased, for the value of unpaid services and labor allegedly furnished the decedent after his 1959 'heart attack' and before he died on September 8, 1966, at age 65. By 'written Order of the Probate Court of Dade County,' the cases were transferred in February 1967 to the circuit court which, without a jury, separately but consecutively tried each cause on August 2, 1967. On that date Gehner had judgment 'aggregating $7,072.02' and Kottmeier, in his case, was awarded $5,400.00. The administrator-defendant served as counsel for the estate at the trials and perfected an appeal in each matter to this court.

Mr. Backs, a bachelor farmer, resided about 3 1/2 miles southwest of Lockwood in Dade County on his 120-acre 'home place' for over 25 years before he died. He also had a place in Lawrence County and rented pasturage north of Lockwood. The 'dead man's statute,' V.A.M.S. § 491.010, prevented the plaintiffs from testifying in their own behalf, but did not prohibit their appearance as witnesses in the case of the other. Eleven erstwhile friends and neighbors of decedent, in addition to Messrs. Gehner and Kottmeier, testified concerning the various services plaintiffs had rendered Mr. Backs. Three brothers, one sister and a nephew of Mr. Backs lived in Lockwood or just south thereof during the times involved. None of them testified and defendant offered no evidence in either cause. The witnesses recounted that eight men, other than plaintiffs, had worked for Mr. Backs, and three so named testified at the trials.

No depositions or oral testimony were presented in connection with the after-trial motions, although three affidavits were served with each. V.A.M.R. 78.03; V.A.M.S. § 510.350. Defendant's motions and affidavits assert that before trial he had 'made diligent inquiry, and industriously endeavored to discover and produce on trial * * * witnesses who worked for William Backs, but utterly failed * * * because the * * * persons questioned * * * could not remember or did not know * * * who worked for William Backs, except (for) Cecil Blevins, who was dead.' On August 12, 1967, (the motions and affidavits continue) defendant first learned that Morris Inman and Fred Obert worked for decedent and 'Morris Inman will testify, deny and controvert the claim of George Gehner that he performed services for William Backs * * * (and) the claim of Elmer Kottmeier in that he was paid for the services he performed and deny and controvert the claim of Elmer Kottmeier that he performed services for William Backs; * * * Fred Obert will testify, deny and controvert the claim of George Gehner that he performed services for William Backs * * * (and) the claim of Elmer Kottmeier that he performed services for William Backs.' Defendant further swore that only decedent's financial records for 1966 had been located prior to trial, but that on 'August 16, 1967, Grace Backs' had discovered previous records which 'show that George Gehner (and) Elmer Kottmeier received payment by check from William Backs for services (they) did perform for William Backs from 1959 to 1965.' Defendant's motions and affidavits also recite the 'new and important evidence for defendant' had come to defendant's knowledge since the trial and was 'previously unknown * * * not owing to the want of due diligence,' that the 'newly discovered evidence * * * is not cumulative only * * * is not merely (intended) to impeach the character or credit of a witness or witnesses' and 'is so material it would probably produce a different result, if a new trial were granted * * *.'

In his affidavits, Morris Inman vowed he worked as a hired hand for decedent on the 'home place' from 1962 to 1965, and the only work George Gehner had done 'during that time was to help put up some hay one time; * * * George Gehner often came to William Backs' home place to loaf around.' Inman said he and Cecil Blevins 'did all the work on the home place and * * * when Elmer Kottmeier helped us William Backs paid me and sent me to Elmer's place to help Elmer in exchange for his labor.' Fred Obert's affidavits recite that he 'worked for William Backs over a period of the last 10 years of his life on his home place south of Lockwood * * * and on his place in Lawrence County, and on * * * (the) place north of Lockwood * * * that he rented; that I helped him vaccinate calves and castrate his pigs every year he had any; that I helped him repair fences * * * and store hay in his barn; that I never saw George Gehner (or) Elmer Kottmeier doing amy work for William Backs.'

George Gehner's counter-affidavit asserts that 'to the best of affiant's knowledge and belief' both Inman and Obert were residents of Dade County for many years and were available for trial 'had any effort or diligence been shown on * * * preparation and trial * * * (that the) affidavits (of defendant, Inman and Obert), even if believed, * * * would be only impeaching in nature' and the proposed evidence 'would not in any probability result in a different conclusion.' Gehner also stated 'the only checks that could possibly be in the possession of defendant made payable to affiant * * * would be for different items of personal property sold by plaintiff to deceased' and not in payment for any services or labor claimed. The counter-affidavit concluded that 'defendant has been guilty of a lack of diligence' in locating any records or checks of the decedent because he 'has had full and complete access to said checks since the time of his appointment as Administrator.'

The checks and financial records to which defendant alludes in his motions and affidavits were not attached thereto or otherwise made a part of the record in either cause.

Led by the maxim 'Expedit (or Interest) reipublicae ut sit finis litium,' ¹ our courts have long viewed motions for new trial on the ground of newly discovered evidence with marked distaste, and grant them as an exception and refuse them as a rule. ² All such motions are to be examined with caution, ³ although the action of the trial court in denying a motion for new trial on the basis of newly discovered evidence will be more closely scrutinized by appellate courts than when the new trial is granted. Pearce v. Rogers, Mo.App., 15 S.W.2d 874, 875(2). The granting or refusing of the new trial for newly discovered evidence reposes, to a great degree, within the sound discretion of the trial judge, whose ruling should not be disturbed but for clear abuse, ⁴ and when the motionis overruled the onus probandi is cast upon appellant to display that the trial court clearly erred. Galeener v. Derris, Mo.App., 20 S.W.2d 167, 169(5). If there be doubt whether the trial court's discretion has been exercised soundly, the doubt is to be resolved in favor of the ruling it made. Chapman v. King, Mo.App., 396 S.W.2d 29, 37(16); Van Meter v. Beckers, Mo.App., 42 S.W.2d 951, 954(6).

As stated in Lynch v. Baldwin, Mo., 117 S.W.2d 273, 276(9), and in many cases herein previously and subsequently cited, before a court can grant a new trial on the ground of newly discovered evidence, the party in whose favor the order is made must show, (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come to his knowledge sooner; (3) that it is so material that it would probably produce a different result if a new trial were granted; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be produced, or its absence accounted for; and (6) that the object of the evidence is not merely to impeach the character or credit of a witness. 66 C.J.S. New Trial §§ 101--114, pp. 290--328; 39 Am.Jur., New Trial, §§ 156--174, pp. 162--180.

Defendant's motions and affidavits recite Fred Obert and Morris Inman 'would testify, deny and controvert' the claims of plaintiffs that they performed services for the decedent. If this be true, there would never be occasion of Mr. Backs to pay plaintiffs for work either by check or exchange labor. Nonetheless, defendant's motions and affidavits asseverate (as does Inman's affidavit) Kottmeier was reimbursed for services performed by exchange labor and the 'newly discovered' financial records show both plaintiffs 'received payment by check from William Backs for services' they performed for the decedent from 1959...