Hornsey v. De Voto

• Decision Date: 07 May 1929
• Parties: R. W. HORNSEY, EXECUTOR OF THE ESTATE OF E. B. CICARDI, DECEASED, RESPONDENT, v. LEO C. DE VOTO, APPELLANT. [*]
• Court: Missouri Court of Appeals

16 S.W.2d 630

223 Mo.App. 340

R. W. HORNSEY, EXECUTOR OF THE ESTATE OF E. B. CICARDI, DECEASED, RESPONDENT, v. LEO C. DE VOTO, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

May 7, 1929

Appeal from the Circuit Court of the County of Jefferson.--Hon. E M. Dearing, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

James Booth and Anderson, Gilbert & Wolfort for appellant.

(1) The admission of the testimony of A. F. Karte as to statements alleged to have been made by the deceased to said A. F. Karte on or about the 20th of October, 1926, not in the presence of defendant, was error. Townsend v. Schaden, 275 Mo 244; Fishback v. Prock, 311 Mo. 507; Pursifull v. Pursifull, 257 S.W. 117; Bosard v. Powell, 79 Mo.App. 187; O'Day v. Realty Company, 191 S.W. 46. (2) The admission of the testimony of Meta Cicardi with her husband concerning the placing of these notes with De Voto for collection, and not in the presence of De Voto was error. Cases cited under point 1; Brown v. Patterson, 224 Mo. 639; Williams v. Moore, 203 S.W. 824. (3) There was no competent evidence in the case that the deceased gave the notes to De Voto for collection, and therefor the following declaration of law should have been given: "The court declares the law to be that there is no evidence in this case sufficient to prove that said deceased gave said notes to defendant for collection." See cases cited under point 1. (4) The trial court should have found in favor of defendant, as there was no competent evidence in the case upon which any other finding than one for defendant could be rendered, and the evidence for defendant conclusively showed an absolute gift. Martin v. First National Bank, 206 Mo.App. 633; Lindhorst v. Werner, 270 S.W. 151; Stark v. Lincoln, 291 S.W. 135; Chandler v. Hadrick, 187 Mo.App. 672; Telle v. Roever, 159 Mo.App. 115.

C. Lew Gallant and Karl M. Vetsburg for respondent.

(1) The burden of proof is upon the party claiming the benefit of a gift to establish by clear and convincing testimony that the donor surrendered the full and complete possession of the alleged gift with the intention to relinquish all claim to and dominion over the same. Jones v. Falls, 101 Mo.App. 536; Hunter v. Railroad, 149 Mo.App. 243; Cremer v. May, 8 S.W.2d 110. (2) Where a gift inter vivos is not asserted until after the death of the alleged donor, it must be established by clear, unequivocal and conclusive evidence which would convince the court beyond a reasonable doubt of its truthfulness, and is regarded with suspicion by the court. Jones v. Falls, 101 Mo.App. 548; Albrecht v. Slater, 233 S.W. 8, 11; Cremer v. May, 8 S.W.2d 110, 115. (3) This being a jury waived case, this court is not concerned with the rulings of the trial court on the admission of testimony. Even though the court received some incompetent testimony, its reception is not material and is not reversible error. Brunke v. Salinger, 8 S.W.2d 88. (4) In jury waived cases, the trial court has much more latitude in the admission of evidence, and the same strictness and particularity in testing the correctness of its rulings is not applied as in jury cases. Cornice Co. v. Trust Co., 146 Mo.App. 36. (5) As this is a jury waived case, and there is sufficient other testimony to sustain the court's finding, the admission of the declarations of Emanuel B. Cicardi was harmless, and the judgment should be affirmed. Brick Co. v. Contracting Co., 219 S.W. 681; Laumeier v. Gehner, 110 Mo. 122; Roberts v. Hodges, 222 S.W. 859; Blackwell v. Baily, 1 Mo.App. 328; 4 C. J., sec. 2542, p. 652; 2 R. C. L., sec. 206, p. 252. (6) This being a jury waived case, the only thing that concerns this court on this appeal is whether there is sufficient competent testimony to sustain the court's finding. Such being the case, the judgment should be affirmed. See cases cited under point 5. (7) This being a jury waived case, errors, if any, in declarations of law will be regarded as nonprejudicial and will not work a reversal as, on the whole record, the judgment is for the right party. Amber v. Davis, 282 S.W. 459. (8) The court properly refused the declaration of law that there was no evidence sufficient to prove that the deceased gave said notes to defendant for collection. See cases cited under point 5. (9) The cases cited by appellant to prove that the court committed error in the reception of declarations of Cicardi are all jury or equity cases. None of them are jury waived cases and they are not authoritative on the rulings in this case. Hunter v. Railroad, 149 Mo.App. 253; Cornice Co. v. Trust Co., 146 Mo.App. 56, 57; Lowe v. Montgomery, 11 S.W.2d 41. (10) Independently of the declarations of Cicardi, the great weight of the credible testimony in this case is with the respondent, and the judgment should be affirmed.

SUTTON, C. Haid, P. J., and Becker, J., concur. Nipper, J., not sitting.

OPINION

SUTTON, C.

This action for the discovery of assets was commenced in the probate court, whence it went on appeal to the circuit court. The petition charges that defendant, Leo C. DeVoto, has concealed and is wrongfully withholding $ 1139 in money and eleven notes dated June 15, 1926, each for the sum of $ 200, and each signed by Viola Skobel, the property of the estate of deceased. The answer to the petition denies that defendant is withholding any money or notes belonging to said estate. In his answer to the interrogatories filed, defendant says that he obtained possession from deceased on or about September 25, 1926, of sixteen notes for $ 200 each, dated June 15, 1926, signed by Viola Skobel, and made payable to and endorsed by deceased; that seven of said notes had been paid to him, and that he now has in his possession or under his control nine of said notes; that he personally paid no consideration for said notes; that said notes were given to him by the deceased in consideration of love and affection and debts that deceased owed defendant's father; that said notes were delivered to him by deceased for defendant and his two sisters; that the delivery was absolute, and all right, title, interest, and ownership passed with the delivery of said notes to defendant.

Upon the trial anew in the circuit court, without a jury, the court found the issues in favor of plaintiff, and gave judgment that plaintiff have and recover of defendant $ 1100 and the eleven notes for $ 200 each described in the petition. Defendant appeals.

On June 15, 1926, the deceased sold a garage which he owned in St. Louis to Viola Skobel, who, for a part of the purchase price, executed to deceased twenty promissory notes for $ 200 each. These notes were made payable successively on the 15th day of each month following the date of their execution, the last one falling due February 15, 1928. The deceased endorsed the notes and turned them over to the Franklin Bank in St. Louis for collection. He was at the time a customer and depositor of the bank. He received from the bank a receipt for the notes showing that the bank had received the notes for collection. This receipt was written in the back of his pass book. At the same time the notes were listed in the collection record of the bank. The notes due July 15, August 15, and September 15, 1926, were collected by the bank, and the amounts collected were entered on the books of the bank to the credit of the deceased. On October 7, 1926, the remaining seventeen notes were turned over by the deceased to the defendant. This transaction occurred at the bank. Upon delivery of the notes to defendant, he delivered them to the bank for collection, and received a receipt therefor, which was written in the back of his pass book, showing that the bank had received the notes for collection. At the same time the collection teller made an entry in his collection record showing the transfer of the notes from deceased to defendant. The bank afterwards collected seven of the notes, and entered the amounts collected in its books to the credit of the defendant. The last collection was made, as shown by the books, on April 18, 1927. When the notes were delivered to defendant, they were stricken from deceased's pass book, and a notation was made in the pass book, showing that the notes were returned to him, by the collection teller.

John H. Sills, vice-president of the Franklin Bank, produced by defendant, testified:

"On October 7, 1926, Emmanuel B. Cicardi and Leo DeVoto came to me at the bank, and Mr. Cicardi said, 'I have some notes for collection. I wish to give them to Mr. DeVoto.' I then went with Mr. Cicardi and Mr. DeVoto to the collection teller and got what notes there were and handed them to Mr. Cicardi, and he gave them to Mr. DeVoto. Mr. DeVoto then endorsed the notes, and gave them back to me, and Mr. DeVoto and Mr. Cicardi and I went to the collection teller and he wrote here as indicated on the collection record, in the presence of Mr. Cicardi. When Mr. Cicardi obtained the notes from me he gave them to Mr. DeVoto. Mr. DeVoto took the notes and endorsed them, by writing his name on the back, and gave them back to me. The notes had been previously endorsed by Mr. Cicardi. Mr. DeVoto endorsed the notes, and put them in the bank for his account. A pass book was given to him with the notes entered in the back of the pass book, which is the collection receipt of the bank. Mr. DeVoto placed the notes in the bank for collection, and as they were paid they were placed to his credit."

Thomas A. Riske, produced by defendant, testified:

"On October 7, 1926, I had been in charge of the collection department of the Franklin Bank, but on that particular day I wasn't actively engaged in it, but it was more or less under my supervision. The Skobel notes were left at the bank for collection by ...