In re Parkinson

• Decision Date: 06 June 1939
• Docket Number: 35670
• Citation: 128 S.W.2d 1023,344 Mo. 715
• Parties: In re Disbarment Proceedings Against John G. Parkinson, Sr
• Court: Missouri Supreme Court

128 S.W.2d 1023

344 Mo. 715

In re Disbarment Proceedings Against John G. Parkinson, Sr

No. 35670

Supreme Court of Missouri

June 6, 1939

Proceeding dismissed and respondent discharged.

Frank Hollingsworth, William H. Becker, Lester G. Seacat and E. W. Jones for informants.

(1) The evidence shows that the respondent is guilty as charged in Counts 5, 6 and 7, and for that reason Exceptions 4, 5 and 6 to the report of the commissioner should be sustained. As to Count 5. Secs. 30, 31, 41, Rule 35. As to Count 6. Sec. 34, Rule 35. As to Count 7. Secs. 27, 28, Rule 35. (2) The failure of respondent to call as a witness his employee Oscar Payne, creates an inference that Payne's testimony would have been damaging to respondent because Payne was peculiarly available to respondent as a witness. Chavaries v. Natl. Life & Acc. Co., 110 S.W.2d 795; McInnis v. St. L.-So. Inc., 108 S.W.2d 116. (3) The deposition of Oscar Payne in another case was competent. State v. Benson, 8 S.W.2d 53; State v Menz, 106 S.W.2d 448; 12 C. J. 637; 22 C. J. 399. (4) This court should review the record and the evidence in this matter de novo and find the accused guilty or innocent of the charge contained in the information, notwithstanding the report, findings of fact, conclusions of law and recommendations of the commissioner. (a) This court here in exercising its original jurisdiction as the trier of the facts and the report and recommendation of the special commissioner are only advisory and not in any sense binding on this court. State ex inf. v. Arkansas Lbr. Co., 260 Mo. 269.

James A. Reed and Robert Ingraham for respondent.

(1) The report of the commissioner that the evidence is insufficient to show that respondent is guilty of professional misconduct on each and every charge and recommending that the information be dismissed and respondent discharged was overwhelmingly sustained by the credible evidence in the case. (2) The charges should be dismissed unless sustained by clear and convincing evidence and in weighing the evidence the findings of the commissioner are entitled to great weight. Although cases of this nature are called neither "civil" nor "criminal," yet as to the degree of proof required they are analogous to criminal charges. The proof, if not required to be beyond a reasonable doubt, should at least be clear and convincing, not mere suspicion or conjecture. The rule applicable to circumstantial evidence in conspiracy charges should apply, i. e., that if the evidence is as consistent with innocence as with guilt, the charge is not proved.

En Banc.

OPINION

PER CURIAM

This is an original proceeding, instituted by leave, on the information of the General Chairman of Bar Committees, and the Advisory Committee to said General Chairman (under rule No. 36 of this court), charging John G. Parkinson, Sr. (who will hereinafter be referred to as respondent), a licensed and practicing attorney at St. Joseph, with professional misconduct, the object of which is to revoke his license as an attorney, and to forever disbar him. The information is in seven counts, the first four of which charge specific acts of professional misconduct; whereas the remaining three are general in character. The fourth count is no longer involved, as the committee offered no evidence in support of the charge therein contained. Omitting formal portions, and the fourth count in its entirety, the charging parts of said information are as follows:

"I. That the accused John G. Parkinson, Sr., on or about the day of May, 1933, entered into a conspiracy, combination confederation and agreement with one Oscar Payne and Eva Bessie Hinkle Ramseir (formerly Eva Bessie Hinkle) to cheat and defraud the St. Joseph Railway, Light, Heat & Power Company in this, to-wit: That the said Eva Bessie Hinkle Ramseir, who had prior to May 10th, 1933, submitted herself to an illegal operation for the purpose of causing an abortion and which said abortion was then impending, would ride as a passenger upon a bus operated by said company in the City of St. Joseph, Missouri, and designedly fall while upon the same and make it falsely appear that the miscarriage resulting from said illegal operation was caused by the negligence of said company in operating the bus, and that thereafter the said John G. Parkinson, Sr., in his capacity as a lawyer, would assert and file a claim or suit or both against said company falsely claiming and alleging that said miscarriage was caused by the negligence of said company in the operation of said bus, and that in the assertion and prosecution of said claim and suit the said Eva Bessie Hinkle Ramseir would falsely testify that her miscarriage was caused and produced by the negligence of said company in the operation of its bus; that pursuant to said conspiracy, scheme and plan aforesaid, Eva Bessie Hinkle Ramseir, on or about May 10th, 1933, did enter and ride upon a bus of said company operated in the City of St. Joseph and did designedly fall while riding thereon in such a manner as to make it appear that said fall was caused by the negligent operation of said bus, following which said fall said Payne and her husband transported her in an automobile from the scene of the fall to the entrance of a rock quarry where she was let out by said Payne and walked home and went to bed and called a physician (not a party to the conspiracy) and shortly thereafter did suffer a miscarriage; and that thereafter in further pursuance of said conspiracy, plan and scheme, the accused and said Payne called at her home and there procured the execution of a contract employing the accused as her attorney to represent her in the presentation and prosecution of said false claim for damages against said company, agreeing to pay the accused fifty per cent of any amount recovered on said false claim; and that the accused, in further pursuance of said conspiracy, plan and scheme, did make a claim and file suit against said company for damages falsely claiming and charging that the miscarriage resulted from the negligence of said company in the operation of said bus; and that thereafter the said Eva Bessie Hinkle Ramseir, having been subpoenaed by said company to give her deposition in said cause, was told and directed by said Payne, in further pursuance of said conspiracy, plan and scheme, to go to the office of accused and discussed with accused the testimony that she would give in said deposition; and that on or about August 4, 1933, the said Eva Bessie Hinkle Ramseir went to the office of the accused, where the accused, in further pursuance of said conspiracy, plan and scheme, did advise her to testify in her deposition that she had boarded said bus for the purpose of locating a house for her mother and to testify that the bus stopped suddenly causing her to fall, and to testify that the miscarriage happened as a result of the fall, and that she did not know who had transported her from the scene of the fall, all of which said proposed testimony was false and by the accused known to be false at the time; and that thereafter the said Eva Bessie Hinkle Ramseir did appear and give her deposition, whereat she testified falsely as aforesaid and as directed to do by the accused; and that thereafter, in further pursuance of the aforesaid conspiracy, plan and scheme, and as a result of the making of said false claim and the suit filed thereon and the false testimony given in the deposition as aforesaid, the accused effected a compromise of the suit for the sum of Seven Hundred Fifty Dollars, thereby defrauding said Bus Company of said sum of Seven Hundred Fifty Dollars, and thereafter in the division of the proceeds of said settlement among the accused and his co-conspirators paid to the said Eva Bessie Hinkle Ramseir the sum of Fifty Dollars.

"II. That the accused John G. Parkinson, Sr., on or about the 31st day of July, 1933, entered into a conspiracy, combination confederation and agreement with Dr. Blanche Rennick, Oscar Payne, George W. Barker, Minnie B. Jeffers and Ross Cox to cheat and defraud an Automobile Liability Insurance Company, in this, to-wit: That the said Minnie B. Jeffers, after submitting to an illegal operation performed by Dr. Blanche Rennick for the purpose of producing an abortion and while the miscarriage to result therefrom was impending, would participate in a faked and pretended automobile accident from which it would be made to appear that the miscarriage resulting from said illegal operation was caused by the unintentional negligence of one George W. Barker who then had, or would procure, a contract of automobile liability insurance indemnifying him against loss or damage resulting from unintentional negligence in the operation of the automobile covered thereby, and thereafter the said Minnie B. Jeffers, through the accused as her attorney, would make a false and fraudulent claim against said Barker for the purpose of collecting damages from his insurer upon the false claim that her miscarriage was caused and produced by the unintentional negligence of said Barker in the operation of an automobile covered by the contract of liability insurance hereinbefore mentioned, which said policy of insurance was procured by the said George W. Barker with the knowledge of the accused and in pursuance of the conspiracy aforesaid for the purpose of defrauding said insurer by faking an accident as aforesaid; and that thereafter, pursuant to said conspiracy, scheme and plan as aforesaid, it was agreed that the said Minnie B. Jeffers would station herself at or near a street intersection in the City of St. Joseph, Missouri, with the understanding and agreement with the accused and his aforesaid co-conspirators that said Barker would drive the automobile covered by the policy...