Laughlin v. Boatmen's Nat. Bank of St. Louis

• Citation: 163 S.W.2d 761
• Decision Date: 05 May 1942
• Docket Number: No. 37127.,37127.
• Parties: LAUGHLIN v. BOATMEN'S NAT. BANK OF ST. LOUIS.
• Court: United States State Supreme Court of Missouri

163 S.W.2d 761

LAUGHLIN v. BOATMEN'S NAT. BANK OF ST. LOUIS.

No. 37127.

Supreme Court of Missouri, Division No. 2.

May 5, 1942.

As Modified on Denial of Rehearing July 28, 1942.

Appeal from St. Louis Circuit Court, Division No. 4; Robert J. Kirkwood, Judge.

Action by Marie H. Laughlin, administratrix of the estate of Randolph Laughlin, deceased, against the Boatmen's National Bank of St. Louis, administrator pendente lite of the estate of Hugh W. Thomasson, deceased, for an attorney's fee and amounts advanced by plaintiff's intestate for expense of litigation against and support of defendant's intestate and expense of his funeral. Judgment for plaintiff, and defendant appeals.

Reversed and remanded in part and affirmed in part.

James V. Frank, Franklin E. Reagan, and Charles Claflin Allen, Jr., all of St. Louis, for appellant.

Jones, Hocker, Gladney & Grand and Frank Y. Gladney, all of St. Louis, for respondent.

PER CURIAM.

In this action Marie H. Laughlin as the administratrix of the estate of Randolph Laughlin seeks to recover $22,350 attorney's fee, $11,503.41 advanced for expense of litigation and support and $124.25 advanced for funeral expense from the Boatmen's National Bank as the administrator of the estate of Hugh W. Thomasson, deceased. The petition alleges that the legal services were rendered and the advancements were made at the special instance and request of Thomasson between the dates of June 9, 1932, and December 2, 1932, chiefly in defense of an insanity proceeding in St. Louis and particularly in the prosecution of a plea in abatement filed in the cause, the trial of which consumed ninety days. The funeral expense was paid by Laughlin when Thomasson died in Little Rock, Arkansas, on January 28, 1933.

Aside from the expert evidence as to the value of the legal services and Mrs. Laughlin's testimony that she was the administratrix and widow of Randolph Laughlin, the plaintiff's only witness was Marie Eaton, who was Laughlin's secretary from 1924 until his death on February 23, 1933. She testified that she was present and heard Thomasson employ Laughlin. She then testified to the nature and extent of the services rendered and the sums advanced in the prosecution and defense of the varied legal problems involving Thomasson as well as for his support and maintenance.

The defense to the suit was that Grace Caroline Mahood and others entered into a conspiracy to arrange a fictitious marriage, or to entrap Thomasson into a marriage, between Thomasson and Grace, after which she and her associates planned by unlawful, fraudulent means and by force to obtain as much of his extensive property and money as possible and that Laughlin became a party to the conspiracy and was in fact representing Grace and not Thomasson and therefore was not entitled to any sum for his legal services or to be reimbursed for his advancements.

On this issue the jury returned a verdict for the plaintiff for $12,500 for the legal services, $10,590.13 for the advancements and the $124.25 incident to Thomasson's death, or a total of $23,217.56, and the administrator bank appeals.

At the outset we are confronted with the plaintiff's motion to dismiss the appeal for the stated reason that appellant's statement of the facts completely fails to comply with our Rule 15 in that so many of the material facts are omitted that it does not constitute a fair statement and because the facts are misstated and distorted "in a deliberately planned effort to confuse and mislead the court and deliberately falsifies the record." The appellant's suggestions in opposition to the motion vigorously resent the imputations and attempt to demonstrate the quality of the statement. The appellant's statement is far from being a model but the facts in this case are not to be had from a reading of either party's statement or argument but must be gleaned, as is often the case, from the court's own reading of the record. While the statement is not what it should be the motion will be overruled.

Previous litigation in this court regarding Thomasson, his tangled affairs and his lawyers furnish some insight into this cause. The prohibition and mandamus cases preliminary to the trial of the plea in abatement in the insanity hearing were decided in 1932. State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; State ex rel. Terry v. Holtkamp, 330 Mo. 608, 51 S.W.2d 13; State ex rel. Townsend et al. v. Mueller, 330 Mo. 641, 51 S.W.2d 8; State ex rel. Townsend and Bolles v. Holtkamp, 330 Mo. 1101, 55 S.W.2d 428. Thomasson's will was upheld in 1937. Townsend et al. v. Boatmen's National Bank, 340 Mo. 550, 104 S.W.2d 657. The costs incident to the will contest were disposed of by the St. Louis Court of Appeals in 1941. Townsend et al. v. Boatmen's National Bank, 148 S.W.2d 85. The fees for some legal services rendered Thomasson and others involved in his affairs were disposed of in 1940 and 1941. In the Matter of the Estate of Hugh W. Thomasson (Rogers v. Boatmen's National Bank), 346 Mo. 911, 144 S.W.2d 79; In re Thomasson's Estate (Thompson v. Boatmen's National Bank), 347 Mo. 748, 148 S.W.2d 757; Boatmen's National Bank v. Wurdeman and Stevens, 344 Mo. 573, 127 S.W.2d 438. The costs of the ninety day trial on the plea in abatement were disposed of by this court a short time ago. In re Thomasson (Townsend v. Boatmen's National Bank), Mo. App., 119 S.W.2d 433; Id., Mo.Sup., 159 S. W.2d 626. This list does not include the applications for writs and Marie Eaton's habeas corpus proceeding in which opinions were not written. Nor does it, of course, include the cases now pending involving other lawyers' and doctors' fees as well as other matters.

The appellant administrator contends its demurrers should have been sustained for the reasons that (1) the undisputed evidence shows Laughlin was engaged in the fraudulent conspiracy and his services were not in good faith rendered Thomasson but Grace and he being a lawyer is therefore not entitled to recover and (2) the undisputed evidence shows he agreed to try the insanity case without fee.

The trouble with this contention, however, is that the undisputed evidence is the defendant's evidence and it is not documentary, admitted or conceded by the respondent, or undisputed in such a manner that we may reverse the judgment outright as we would if permitted to follow our own inclination.

The defendant's evidence on the issue of conspiracy showed that Grace Mahood and others equally as guilty but less brazen did enter into a conspiracy to obtain Thomasson's money and property after forcing or entrapping him into marrying her. She may or may not have had a husband at the time but it was her third or fourth marriage. She lived with various and sundry men under many aliases, and with some of them after her marriage to Thomasson. Thomasson was seventy-four, a frail, weak, senile man. She was young and an expert adventuress with expert advisers. On her so-called honeymoon to Chicago—on which Thomasson was taken by force with one of her paramours acting as a chauffeur— she obtained $10,000, a Pierce-Arrow automobile and other property. Subsequently she and others obtained notes for large sums from him, secured by deeds of trust on his real estate and finally a separation agreement and property settlement. In short, the evidence shows a conspiracy to obtain his wealth and a successful one up to a certain point. And furthermore, without detailing the facts, we entirely disagree with the jury's verdict as to Laughlin being a party to the conspiracy. We are also of the opinion that the verdict is against the weight of the evidence but with these matters we have no concern.

It is not necessary or possible in this opinion to deal with all the cases on this subject but it is not amiss to call attention to some of the leading cases as applied to this case. This is a law case and this court cannot weigh the evidence even though it involves a lawyer and his services. He and his representatives are entitled to the same application of our rules and laws as other litigants. The jury verdict on the issue of fraud and conspiracy is conclusive in the absence of certain exceptions which we are unable to find in this record. Thompson v. Lyons, 281 Mo. 430, 220 S.W. 942; Tate v. School Dist. No. 11 of Gentry County, 324 Mo. 477, 23 S.W.2d 1013, 70 A.L.R. 771; Johnson v. Bray, Mo.Sup., 31 S.W.2d 998. While Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361, was decided by a divided court and may be distinguished because it was a motor vehicle negligence case involving ownership, agency and scope of employment it states the rule applicable here. There the court said, 271 S.W. loc. cit. 364:

"It is contended by the respondent that it was shown by the respondent's evidence that Faeth was not acting within the scope of his employment, but was bent on his own business at the time of the accident and that, as plaintiff offered no evidence to overcome or put in issue the evidence so introduced by respondent, it was entitled to a directed verdict. This is a misconception. Respondent concedes that plaintiff made a prima facie case. Respondent then took the laboring oar. We will not stop to point out the glaring contradictions in the evidence. The jury, however, was not bound to believe respondent's evidence, even if it had not been contradicted."

For other motor vehicle cases see Murphy v. Loeffler, 327 Mo. 1244, 39 S.W.2d 550; Hampe v. Versen, Mo.App., 32 S. W.2d 797. The Barz case is explained and the rule applied to the defense of fraud in the procurement of a note, the plaintiff claiming to be a holder in good faith and for value, in State ex rel. Strohfeld v. Cox et al., 325 Mo. 901, 30 S.W.2d 462, 465: "Where a party asserts the affirmative of a proposition and...