In re Thomasson's Estate

• Citation: 148 S.W.2d 757,347 Mo. 748
• Decision Date: 13 March 1941
• Docket Number: 36821
• Parties: In re Estate of Hugh W. Thomasson, Ford W. Thompson v. Boatmen's National Bank of St. Louis, Administrator Pendente Lite of the Estate of Hugh W. Thomasson, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 757

347 Mo. 748

In re Estate of Hugh W. Thomasson, Ford W. Thompson v. Boatmen's National Bank of St. Louis, Administrator Pendente Lite of the Estate of Hugh W. Thomasson, Appellant

No. 36821

Supreme Court of Missouri

March 13, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Reversed and remanded.

James V. Frank, Franklin E. Reagan and Chas. Claflin Allen, Jr., for appellant.

(1) Since Shad Bennett was associated with respondent in the defense of the ninety-day trial, and was charged by the appellant with fraud and conspiracy, he was not equally available as a witness to the appellant, and, since he was not called to the stand by the respondent with whom he was associated, it was proper for the appellant to comment thereon in arguing the case to the jury. Accordingly appellant's counsel should have been permitted to argue to the jury and comment on the respondent's failure to call Shad Bennett to the stand. Winkler v. Pittsburgh, C C. & St. L. Ry. Co., 321 Mo. 27, 10 S.W.2d 649; Chavaries v. Natl. Life & Acc. Ins. Co., 110 S.W.2d 790; Doherty Real Estate Co. v. Gast, 95 S.W.2d 877; McInnis v. St. L.-Southern, Inc., 108 S.W.2d 113; Miller v. Collins, 40 S.W.2d 1062; Donet v. Prudential Ins. Co., 23 S.W.2d 1104; State v. Kester, 201 S.W. 62; Fuerstenberg v. Kram, 249 S.W. 143. (2) Acts of a coconspirator during the course of the conspiracy and in furtherance thereof are admissible against the other parties thereto, even though not committed in the presence of or not known to the others. Accordingly, Randolph Laughlin's checks payable to Grace Thomasson and others during the course of this matter were admissible against the plaintiff. Hellman v. Somerville, 212 Mo. 415, 111 S.W. 30; State ex rel. v. Peoples Ice Co., 246 Mo. 168, 151 S.W. 101; Connecticut Mut. Life Ins. Co. v. Hillman, 188 U.S. 208, 47 L.Ed. 446; Erfort v. Consalus, 47 Mo. 208; State v. Lueders, 299 Mo. 671, 253 S.W. 716; State v. Reich, 293 Mo. 415, 239 S.W. 835. (3) The petition in the case of Hugh W. Thomasson v. Frank Real Estate Company and the records of the St. Louis Court of Appeals in the habeas corpus suit should have been admitted because they are relevant as part of the chain of evidence which explains and gives meaning to other evidence and constituted part of the facts and circumstances throwing light on the issues in the case, and were admissible as part of the res gestae. Jamison v. Bagot, 106 Mo. 240, 16 S.W. 697; State ex rel. v. Shain, 343 Mo. 435, 121 S.W.2d 789. (4) The court erred in excluding testimony offered by appellant to show, in substance, that there was no testimony on sanity or residence in the Little Rock proceedings and said proceedings were a part and parcel of the conspiracy and a fraud upon the courts of Missouri. The testimony of the witnesses in the Little Rock proceedings are admissible as part of the res gestae explaining the fraudulent nature of the transactions. State ex rel. v. Shain, 343 Mo. 435, 121 S.W.2d 789; Wigmore on Evidence, sec. 1766.

Igoe, Carroll, Keefe & McAfee and J. W. McAfee for respondent.

(1) Even if defendant had made inquiry and had discovered that associate counsel were guilty of such acts as disqualified them from representing Thomasson, it would not affect respondent's right to recover herein. Bryant v. Lewis, 27 S.W.2d 604. (a) When respondent Thompson was employed to defend the sanity of Hugh W. Thomasson, it was his duty to faithfully and diligently present every fact and point tending to an adjudication favorable to his client, and, in the absence of a showing to the contrary, it is presumed that he did his duty. Slade v. Harris, 105 Conn. 436, 135 A. 570; Styles v. Tyler, 65 Conn. 432, 30 A. 165; Priest v. Dodsworth, 235 Ill. 613, 85 N.E. 940, 14 Am. Cas. 340; Pennington v. Yell, 11 Ark. 212, 52 Am. Dec. 262. (b) This duty is not changed or lessened by the fact that some person or persons, for bad motives, deemed it to their interest that a favorable result be obtained for Hugh W. Thomasson in the insanity case. (c) To have a man declared insane is not a proper method of protecting him from a designing woman and her confederates, and for a lawyer to withhold facts and points bearing on the issue of sanity or the jurisdiction of the court to try such issue, for that reason or any other, would be a violation of his duty to the court and his client. (d) Respondent was expressly employed to act for the defense in the sanity suit, and there was no duty upon him to investigate or render any service in collateral matters. 6 C. J., sec. 146, p. 642; Pennington v. Yell, 11 Ark. 212, 52 Am. Dec. 262. (2) Instruction A is defective in that it directs a verdict for defendant without requiring findings on the following facts, which are essential to such result: (a) that if respondent had made a reasonably diligent inquiry he would have discovered the facts of the alleged conspiracy, (b) that respondent was negligent in not inquiring into and discovering such facts and (c) that his client was harmed or damaged by such negligence. Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W.2d 978; Hopkins v. M. & O. Ry. Co., 33 S.W.2d 1010; Lewis v. Terminal Railroad Assn., 61 S.W.2d 236; State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1083. (3) Appellant contends that it was "in the interest of Grace Mahood that Thomasson be declared sane." There is no claim or showing that he was insane and there is no evidence of any agreement to use illegal methods in his defense. There can be no conspiracy to do a lawful thing by lawful means. Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526; Stevens v. Mound City Undertaking Assn., 295 Mo. 596, 246 S.W. 40; Darrow v. Briggs, 261 Mo. 244; Alexander v. Relfe, 9 Mo.App. 133. (4) The court's rulings on argument to the jury of counsel for appellant is correct. (a) There was no duty on respondent to call Shad Bennett as a witness, and since he was equally available to each side, it was not error to refuse to allow appellant's counsel to argue the fact. Rothchild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Bryant v. Lewis, 27 S.W.2d 604. (b) The court properly told the jury that counsel had inadvertently misquoted Judge Hoffmeister as testifying that Wilfred Jones sat at counsel's table with Ford Thompson, since record shows that the evidence was misquoted. (5) Appellant's assignments of errors Nos. 1, 2 (c) and 8, being general in character and not followed by any specification of points relied on, are not before the court for review. S.Ct. Rule 15; Majors v. Malone, 339 Mo. 1118, 100 S.W.2d 300.

OPINION

Hays, J.

Respondent, an attorney at law, exhibited in the probate court of the City of St. Louis a demand against the estate of Hugh W. Thomasson, deceased, for legal services alleged to have been rendered by him to decedent in connection with the defense of an insanity proceeding in the circuit court of the City of St. Louis. The probate court disallowed the demand; but, on appeal to the circuit court, a trial to a jury resulted in a verdict for respondent in the sum of $ 10,000, and from the judgment entered thereon Thomasson's administrator pendente lite has appealed. For convenience we will speak of the respondent as plaintiff and of the appellant as defendant.

Litigation involving Mr. Thomasson and his estate has been before this court many times during the past decade. We shall here briefly summarize the facts as they are disclosed by the present record.

In the summer of 1930 Thomasson was 74 years old -- a man of small stature, feeble in body and of slowly failing intellectual power. His education had been limited to two terms in a common school; but natural business acumen had enabled him to amass and conserve a considerable fortune. He had no immediate family and lived alone in the Fairmont Hotel in St. Louis. An adventuress, who during the course of her long and checkered career had passed under numerous aliases but to whom we shall refer as "Grace Allen," was then sojourning in St. Louis. An acquaintance pointed out Mr. Thomasson to her, saying that if she married him she would be the smartest woman in the city. She took a room at the Fairmont, succeeded in getting an introduction to Thomasson and began to telephone him, send him notes and take him riding in a borrowed automobile. After she had thus gained his confidence she managed, fraudulently and without his knowledge, to procure an Illinois license authorizing her marriage to him. She thereupon took him across the river where a ceremony was performed by a justice of the peace, the words thereof being spoken in so low a tone that Thomasson did not know what was being done.

For the purpose of the present case it will be unnecessary to trace in detail the further workings of her scheme. Suffice it to say that, by kidnapping Thomasson and by using threats of bodily violence and through the employment of every species of fraud, she obtained from him deeds to a considerable part of his real estate and possession of some valuable property. Thomasson instituted certain suits against her to annul the purported marriage and to cancel the conveyances to her. Again she kidnapped him and kept him in close confinement, transporting him from place to place about the country. They finally returned to and settled in St. Louis County.

At this point some of Thomasson's collateral kindred, through their attorneys, filed an information in the probate court of the City of St. Louis alleging that Thomasson was insane and incapable of managing his affairs. Grace Allen was then represented by one Wilfred Jones, at that time a licensed attorney. Jones had served as prosecuting attorney of St Louis County and was somewhat prominent in county politics. ...