James v. Turilli

• Decision Date: 28 September 1971
• Docket Number: No. 33962,33962
• Citation: 473 S.W.2d 757
• Parties: Stella JAMES et al., Plaintiffs-Respondents, v. Rudy TURILLI, d/b/a Jesse James Museum, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 757

473 S.W.2d 757

Stella JAMES et al., Plaintiffs-Respondents, v. Rudy TURILLI, d/b/a Jesse James Museum, Defendant-Appellant.

No. 33962.

St. Louis Court of Appeals, Missouri.

Sept. 28, 1971.

Motion for Rehearing or for Transfer to Supreme Court Denied

Nov. 29, 1971.

Application to Transfer Denied Jan. 10, 1972.

Robert A. Cedarburg, St. Louis, for plaintiffs-respondents.

G. C. Beckham, Steelville, Morton K. Lange, St. Louis, for defendant-appellant.

CLEMENS, Commissioner.

General background information about the parties' status will accentuate the issues here, which arise out of plaintiffs' claim to a $10,000 reward offered by the defendant.

Plaintiff Stella James is the widow of Jesse E. James, son of the notorious Missouri desperado, Jesse W. James; plaintiffs Ethel Rose Owens and Estelle Baumel are her daughters. They contend that on April 3, 1882, Jesse W. James was shot and killed by one Robert Ford who pled guilty to the murder.

Defendant Rudy Turilli operates the 'Jesse James Museum' at Stanton, Missouri. He contends the man shot, killed and buried as Jesse James in 1882 was an imposter, that in fact Jesse James lived for many years thereafter under the alias J. Frank Dalton and last resided with defendant at his museum into the 1950's. Admittedly, defendant offered a $10,000 reward 'to anyone who could prove me wrong.'

By this action plaintiffs seek to recover the reward. They got a $10,000 verdict and judgment and defendant has appealed. He complains that plaintiffs' petition and evidence were both insufficient, that an affidavit was improperly received in evidence, that one paragraph of plaintiffs' verdict-directing instruction lacked evidentiary support and another paragraph was confusing. These in turn.

Sufficiency of the Petition. Plaintiffs pleaded an accepted unilateral contract. Paragraph 3 pleaded defendant's unilateral offer: 'That on February 27, 1967, the Defendant before a nationwide television audience denied that Jesse Woodson James, Missouri's famous outlaw, was killed on April 3, 1882; but alleged that he lived as J. Frank Dalton until the aforesaid J. Frank Dalton died; Defendant then went on to state that he 'would pay Ten Thousand Dollars ($10,000.00) to anyone, yourself Mr. Pyne, Mr. Gruber, the audience and the network audience, to anyone who could prove me wrong.''

By paragraph 4 plaintiffs pleaded their acceptance by performance: that after hearing defendant's offer they submitted to him affidavits of persons in and acquainted with the Jesse James family, each stating facts constituting evidence Jesse W. James 'was in fact killed as alleged in song and legend on April 3, 1882, by Robert Ford.'

By his answer defendant admitted his television appearances where he discussed the general subject of Jesse W. James but otherwise denied the offer alleged in paragraph 3 of the petition. Defendant also denied plaintiffs' performance as alleged in paragraph 4.

Defendant challenges the petition as declaring on an indefinite offer. He cites Bay v. Bedwell, Mo.App., 21 S.W.2d 203(1, 2) where the court said: 'It is fundamental that the essential terms of a contract must be certain or capable of being rendered certain through applying ordinary canons of construction to the contract or by reference to some other agreement or matter, in order to be enforceable.' Plaintiffs respond with a quotation from Hoggard v. Dickerson, 180 Mo.App. 70, 165 S.W. 1135(2, 3): 'An offer of reward is in the nature of a contract with any and every person undertaking to comply with its terms. (Citations). The construction of contracts of reward is governed by the same rules applicable to contracts in general * * * and it is a familiar rule of law that a contract should be given a reasonable construction and one that tends to make it valid rather than destroy it altogether. (Citations).'

The parties' dispute about the petition's sufficiency hinges on the word 'prove,' a word of ordinary meaning. For present purposes we accept defendant's own definition of the word: 'Under ordinary rules of construction 'to prove' is to determine or persuade that a thing does or does not exist,' citing Ellis v. Wolfe-Shoemaker Motor Co., 227 Mo.App. 508, 55 S.W.2d 309, l.c. 312. By his alleged offer defendant did not say, as he could have, to whose satisfaction he should be proven wrong. He now argues '(t)he words 'could prove me wrong' in and of themselves, we submit, imply the existence and action of somebody, or some Court, or some jury, or some board, commission, referee or tribunal capable of taking such action as might be necessary to fairly decide the issue one way or another.' We decline to technically interpret the word 'prove' as it would be used in referring to a court trial. It was an ordinary word spoken by one layman to others. Defendant concedes in his brief that the words 'prove me wrong' . . . 'denote an intention to require at least sufficient evidence to persuade the mind of an ordinary man and evidence which according to ordinary standards would be competent for that purpose.'

We hold the trial court properly denied defendant's motion to dismiss the petition. It pleaded an offer to pay a reward if the plaintiffs proved him wrong about Jesse W. James being alive after 1882. Whether the plaintiffs' affidavits were sufficient to persuade an ordinary man that Jesse W. James was killed in 1882 was an issue to be determined by the trier of fact.

Admissibility of Plaintiffs' Affidavits. As said, plaintiffs pleaded they accepted defendant's offer of a reward by tendering affidavits which 'proved him wrong.' Plaintiffs offered in evidence the six affidavits previously submitted to defendant in response to his offer; these by persons in or connected with the James family relating to facts about the death of Jesse W. James in 1882.

Except for plaintiffs' Exhibit C--3 the trial court sustained defendant's hearsay objections to the affidavits. ¹ This ruling would have been proper if plaintiffs had the burden of convincing the jury that Jesse W. James was, in fact, killed in 1882. That was not this case. Instead, the plaintiffs' burden was to show that these affidavits were sufficient to persuade the mind of an ordinary man that the defendant was wrong in contending Jesse W. James lived many years after 1882. That being the issue, each affidavit was in itself an independently relevant fact and was admissible as each affiant's declaration. As said in Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958(9, 10): 'Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.'

Defendant claims error in the admission of plaintiffs' Exhibit C--3, the only one received in evidence. This was an affidavits made in 1938 by Thomas M. Mimms, then 90 years old. Therein he stated his sister Zerelda was the widow of Jesse W. James, whom he knew well; that on April 3, 1882, his sister sent him a telegram stating Jesse W. James had been killed; that he attended the funeral, viewed the body and knew it was that of Jesse W. James. The trial court overruled defendant's hearsay objection; this on the ground the affidavit came within pedigree exception to the hearsay rule. Exhibit C--3 was admissible, not just because it was a pedigree exception to the hearsay rule, but because it like the other affidavits was admissible as an independently relevant declaration.

Sufficiency of the Evidence. Defendant challenges this on two levels: that plaintiffs failed to prove either an offer by him or performance by plaintiffs.

Defendant contends the offer attributed to him by plaintiffs was incomplete in that Mrs. James quoted him as saying he would pay the reward 'to anyone who could prove me wrong' but 'they neglected to establish what it was they were to prove (me) wrong about.' In determining the sufficiency of plaintiffs' evidence we must give them 'the benefit of every reasonable favorable inference which the evidence tends to support.' Mathes v. Trump, Mo., 458 S.W.2d 297(1). Can it reasonably be inferred that when defendant offered the reward to anyone who could prove him wrong he was referring to Jesse W. James being alive after 1882?

Defendant admitted that on the television show the general subject of Jesse W. James was discussed. At trial he testified: 'Q Now, on February 27th, 1967, did you appear on the Joe Pyne Show? A I did. Q And during the course of that show did you make the offer to anyone in the television audience, Mr. Pyne, Mr. Gruber or to anyone on the Network Television that you would pay them ten thousand dollars? A I did. Q And if they could prove you wrong? A Right. Q All right. * * * Q Mr. Turilli, was that offer made in good faith? A It sure was.'

Plaintiff Stella James testified: 'Q All right. Now, in this lawsuit that you and your two daughters have filed, your petition contains this statement, 'That on February 27th, 1967, the defendant, before a nationwide television audience, stated that he would pay $10,000 to anyone who could prove that Jesse James really was killed and didn't live to be some 100 years old.' Now, Mrs. James, I want to wask you if you are sure that these are the exact words that were used by Mr. Turilli on this television program. A No, no. I don't know the exact words.'

We consider this testimony in the light of other evidence that defendant had virtually made a career out of his contention Jesse W. James was not killed in 1882 but lived many years thereafter as J. Frank Dalton. These items from the record: In 1948 defendant met J. Frank Dalton and began a long investigation of his claim to being Jesse W. James. Defendant then took J. Frank Dalton to live with him and since...