In re Thomasson's Estate

• Citation: 144 S.W.2d 79,346 Mo. 911
• Decision Date: 31 October 1940
• Docket Number: 36277
• Parties: In the Matter of the Estate of Hugh W. Thomasson; S. C. Rogers v. The Boatmen's National Bank, Appellant
• Court: United States State Supreme Court of Missouri

144 S.W.2d 79

346 Mo. 911

In the Matter of the Estate of Hugh W. Thomasson; S. C. Rogers v. The Boatmen's National Bank, Appellant

No. 36277

Supreme Court of Missouri

October 31, 1940

Rehearing Denied June 28, 1940.

Motion to Transfer to Banc Denied October 31, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge. Opinion filed at May Term, 1940, May 7 1940; motion for rehearing filed; motion overruled June 28 1940; motion to transfer to Court en Banc filed; motion overruled at September Term, 1940, October 31, 1940.

Reversed.

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

(1) When a lawyer undertakes employment in litigation until it is concluded, and voluntarily withdraws before its conclusion, he cannot recover for the value of his services up to the time of withdrawal. Mills v. Met. Street Ry. Co., 282 Mo. 118, 221 S.W. 5; Blanton v. King, 73 Mo.App. 148; Houck v. Bridwell, 280 Mo.App. 648. (2) From the affirmative allegations of his claim, it appears that Rogers withdrew without cause from his employment. Therefore, it affirmatively appears from the allegations of the claim that he cannot recover. (3) While formal pleadings are not required in claims filed in probate court, yet, where specific allegations are made the claimant is bound by the allegations as made in his claim. Whitworth v. Monahan's Estate, 111 S.W.2d 931. (4) The undisputed testimony shows that before Rogers withdrew he obtained notes for $ 44,000. Where the withdrawal of the attorney from representing his client is for the benefit of the attorney, the burden is on him to show that the transaction whereby he received these notes and deed of trust and withdrew was freely and willingly entered into by the client, and this burden Rogers failed to sustain. Bybee v. S'Renco, 316 Mo. 517, 291 S.W. 459; Barnett v. Ball, 101 Mo.App. 310, 73 S.W. 865. (5) Where the plaintiff fails to prove his case or proves a defense to the case by his own witnesses, verdict for the defendant should be directed when requested at the close of plaintiff's case, and when renewed at the close of the entire case. Dow v. K. C. So. Railroad Co., 116 Mo.App. 559, 92 S.W. 744; Arel v. First Natl. Fire Ins. Co., 195 Mo.App. 165, 190 S.W. 80. (6) The verdict and judgment are excessive, because, under the undisputed testimony in the case, the services were absolutely worthless to Thomasson because they left him and his property under the control of Grace Mahood, where they had been, excepting that Thomasson had been relieved of $ 125,000 worth of property through the deed of trust given to Rogers and others. Boatmen's Natl. Bank of St. Louis v. Wurdeman, 127 S.W.2d 438. (7) Respondent's Instruction 1 is erroneous and prejudicial to appellant for the reason that it directs a verdict in favor of respondent on the mere proof that he performed services for Thomasson, and this notwithstanding that respondent withdrew or abandoned his client prior to the termination of the cases for which he was employed. Pandjires v. Oliver Cadillac Co., 98 S.W.2d 978, 339 Mo. 726; Rawleigh Co. v. Kemes' Estate, 40 S.W.2d 737. (8) Respondent's instructions 2 and 3 are erroneous and prejudicial to appellant. Bales v. K. C. Pub. Serv. Co., 328 Mo. 171, 40 S.W.2d 665.

Amandus Brackman for respondent.

(1) Where there is any evidence to sustain plaintiff's case, however slight, the case is for the jury. Rexford v. Phillipi, 337 Mo. 389; Becker v. Aschen, 131 S.W.2d 533; State ex rel. State Highway Comm. v. Hoffmann, 132 S.W.2d 27; Blondi v. Central Coal & Coke Co., 320 Mo. 1130, 9 S.W.2d 596; Evans v. A., T. & S. F. Ry. Co., 131 S.W.2d 604. (2) Appellant failed to object or except to the submission of the case on plaintiff's instruction and joined in the submission of the case and offered full instructions on appellant's theory and its defense. Under the circumstances appellant is estopped to claim on appeal that the demurrers to the evidence should have been sustained. (3) Where defendants, after demurrers to evidence, requested instruction submitting the issues to the jury, they are estopped to claim that the evidence was insufficient to go to the jury upon the issues so submitted. Davidson v. Hines, 246 S.W. 295; Merrielees v. Wabash Ry. Co., 163 Mo. 470; Ray v. Marquette Cement Mfg. Co., 273 S.W. 1078; Shelby v. Connecticut Fire Ins. Co., 218 Mo.App. 84. (4) The most that appellant was entitled to, under the evidence, was the right to submit the question of abandonment to the jury under proper instructions. King v. Mann, 207 S.W. 836; Young v. Lanzner, 133 Mo.App. 130. (5) There were no objections nor exceptions to the instructions offered by respondent, hence no point as to said instructions can be made on appeal. Sec. 1061, R. S. 1929; Howell v. Jackson County, 262 Mo. 414; In re McMenamy's Guardianship, 270 S.W. 667, 307 Mo. 117. (6) A statement in the probate court is sufficient if it advise opposite party of nature of claim and be sufficiently specific to bar another action. Rassieur v. Zimmer, 249 Mo. 181; Liebaart v. Hoehle's Est., 111 S.W. 928. (7) A judgment which reaches correct result will not be disturbed on appeal. Am. Const. F. A. Co. v. O'Malley, 113 S.W.2d 804; Roberson v. Brotherhood, etc., 114 S.W.2d 139; Gardner v. Queen Ins. Co. of Am., 115 S.W.2d 7.

OPINION

Hays, P. J.

The respondent filed in the Probate Court of the City of St. Louis a demand against the estate of Hugh W. Thomasson, deceased. The case was certified to the circuit court under Section 2053, R. S. Mo. 1929, where the validity of the claim was contested by the present appellant, the executor of said estate. A jury trial in the circuit court resulted in a verdict and judgment for the claimant in the amount of $ 35,000, from which an appeal was allowed to this court.

Respondent, a duly licensed attorney at law, has practiced his profession in St. Louis for many years. The present claim is for legal services alleged to have been rendered by him for Thomasson. Mr. Thomasson was at the time of his death in 1933 some 76 years of age. He was a man of feeble intellect, having suffered for sometime from senile dementia. At the time of his death he was possessed of an estate whose gross value was estimated at about $ 750,000. Respondent first represented him in 1923 by filing a damage suit against the City of St. Louis arising from an abortive attempt of the city to condemn certain Thomasson properties. Owing, so respondent says, to Thomasson's mental condition, this suit was never brought to trial, but at the time of the hearing of the present case was still pending on the circuit court docket. In respondent's demand only an insignificant portion of the total fee asked is allocated to this litigation. Practically all of the fee asked is in connection with litigation against one Grace Allen, also sometimes known as Caroline Mahood and as Grace Thomasson and by divers other names. (For convenience we shall refer to her as Grace Allen.) The Thomasson-Allen matters, in so far as respondent was connected therewith, started in the year 1930 and his connection with these matters terminated August 15, 1931.

Respondent's demand originally was for an attorney's fee of $ 75,250 and expense money of $ 7,337.58, as against which he admitted a credit for payments received of $ 9,171. He afterwards voluntarily reduced this claim by $ 10,000, making the balance prayed for $ 63,416.58.

During the trial below the appellant moved for a directed verdict at the close of the claimant's case and again at the close of all of the evidence, and it here assigns as error the trial court's refusal of these motions. Before considering the record pertaining to this assignment, we will notice a contention of respondent in connection therewith. At the close of all of the evidence, after the trial court had refused the directed verdict for the defendant, the claimant asked and the court at his request gave instructions submitting the case on claimant's theory. To the giving of these instructions appellant failed to except. Appellant then asked and was given instructions submitting its theory of defense. Did it thereby, as contended by respondent, waive the right to challenge the sufficiency of the evidence to make a submissible case? Our latest decisions have held that it did not, and this is now the established general rule of our court. [Lewellen v. Haynie, 287 S.W. 634; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Ambruster v. Levitt Realty Co., 341 Mo. 364, 107 S.W.2d 74; Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797.]

The cases of Davison v. Hines, 246 S.W. 295 and Merrielees v. Wabash R. Co., 163 Mo. 470, 63 S.W. 718, cited by respondent, and also the case of Torrance v. Pryor, 210 S.W. 430, contain certain broad statements which appear to support the respondent's position in this regard. However, in so far as they take the ground that the act of a defendant in requesting instructions submitting his theory of defense necessarily and in all cases waives the question of the sufficiency of a plaintiff's evidence as raised by requested peremptory instructions, these cases were overruled by our later decisions above cited. Hence we rule the point against the respondent.

We fully recognize the rule to which attention was called in oral argument and in respondent's brief that in passing upon a demurrer to the evidence ordinarily we must accept as true all of the facts shown in the record favorable to the plaintiff who was successful below and must disregard evidence favorable to the defendant whenever it is in conflict with that favorable to plaintiff. We must also draw from the evidence all reasonable inferences in support of the claimant's...