Linderman v. Carmin

• Decision Date: 17 February 1914
• Citation: 255 Mo. 62,164 S.W. 614
• Parties: LINDERMAN et al. v. CARMIN.
• Court: Missouri Supreme Court

164 S.W. 614

255 Mo. 62

LINDERMAN et al. v. CARMIN.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. TRIAL (§ 139)—JURY QUESTIONS.

Where there is no conflict in the testimony, its legal effect may be declared by the court; but, if the facts are such that reasonable men can draw more than one inference from them, the question is for the jury.

2. APPEAL AND ERROR (§ 1001)—VERDICT— CONCLUSIVENESS.

While an appellate court may determine what is substantial testimony, it cannot weigh the evidence or set aside a verdict which is supported by substantial testimony, or where the facts admit of different inferences by reasonable men.

3. APPEAL AND ERROR (§ 930)—VERDICT— CONCLUSIVENESS.

Respondent is entitled to every reasonable inference which may be drawn from the testimony in support of the verdict for him.

4. WORDS AND PHRASES—"ADVANCE."

The word "advance," as used in a contract, ordinarily means money furnished with an expectation that it shall be returned, though it may not necessarily have that meaning.

5. APPEAL AND ERROR (§ 204)—OBJECTIONS BELOW — NECESSITY — ADMISSION OF EVIDENCE.

Where, on the issue whether an advance of money was a loan or a gift, defendant allowed, without objection, one of plaintiff's witnesses to testify to her conclusion that the money was an "advance," defendant cannot urge on appeal that his demurrer to the evidence should have been sustained, because the witness should have given the language of the conversation between the parties.

6. EVIDENCE (§ 313) — DECLARATIONS AGAINST INTEREST.

Declarations against a party's interest are presumed to be true, but such presumption is not conclusive.

7. TRIAL (§ 194)—PROVINCE OF JURY—WEIGHING EVIDENCE—DECLARATIONS AGAINST INTEREST.

Declarations against a party's interest not being conclusive, the court cannot instruct how much weight the jury should give such acts or declarations, as the jury must weigh the testimony, though it is uncontradicted and comes entirely from one party.

8. TRIAL (§ 234)—INSTRUCTIONS—WEIGHING EVIDENCE—PRESUMPTIONS.

Where a permissible presumption is one of fact, the court cannot instruct that it is raised by law, but should instruct that it is for them to decide under the evidence whether they will make the presumption.

9. EXECUTORS AND ADMINISTRATORS (§ 451)— CLAIMS AGAINST ESTATE—ACTIONS—SUFFICIENCY OF EVIDENCE.

In an action against an administrator to recover money claimed to have been loaned defendant's intestate by his father-in-law to pay his expenses to another state to secure his wife's body and to pay her funeral expenses, whether

it was understood that intestate should repay the money held a jury question.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by H. P. Linderman and others against Charles L. Carmin, administrator. From a judgment for plaintiffs, defendant appealed to the Springfield Court of Appeals, where judgment was affirmed (142 Mo. App. 519, 127 S. W. 124). Transferred on dissent. Affirmed.

Patterson & Patterson, of Springfield, for appellant. A. F. Drake, of Kansas City, and Hamlin & Seawell, of Springfield, for respondents.

FARIS, J.

This case comes to us from the Springfield Court of Appeals upon the dissent of a judge of that court and the suggestion that the opinion of the majority of the court herein is contrary to the decisions of this court in the cases of State ex rel. v. Elliott, 157 Mo. loc. cit. 618, 57 S. W. 1087, 80 Am. St. Rep. 643, and Knorpp v. Wagner, 195 Mo. loc. cit. 662, 93 S. W. 961. The facts will be found stated in the opinion of the Court of Appeals written by Judge Cox, which we shall, with a slight modification, adopt as expressing our views.

The point upon which the case split in the Springfield Court of Appeals is, we think, upon the concrete facts before us, almost wholly academic. This point is thus stated by Judge Gray, upon whose dissent we acquire jurisdiction: "Where there is no conflict in the evidence and it all comes from plaintiff's witnesses and the written admissions made by the plaintiff, then it is the duty of the appellate court to pass upon the testimony as a matter of law."

On the other hand, the majority opinion in this case, as written by Judge Cox and concurred in by Judge Nixon, states the rule thus: "The jury must weigh the testimony even though it all comes from one side and be uncontradicted."

It was said by this court in the case of State ex rel. v. Elliott, supra: "There is no conflict in the testimony, and therefore the legal effect of the uncontradicted evidence is open to inquiry in this court."

In the case of Knorpp v. Wagner, supra, it was said: "If, however, the substantive facts are disputed, or if reasonable men can draw only one inference from the facts proved, the matter may resolve itself into a question of law."

In the case of Finnegan v. Railroad, 244 Mo. loc. cit. 653, 149 S. W. 623, the below rule from 2 Thompson on Negligence, 1179, was quoted with approval: "Where the facts are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the court; but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, it must go to the jury, to resolve the dispute in the one case, or to draw the inference in the other."

We think that one paragraph of the majority opinion of the Court of Appeals is not in accord with the views expressed on the point in the cases above cited. We have therefore stricken this paragraph from the opinion, because it expresses a view of the law on the point up for ruling, which, if it is not contrary to our holdings, is at least misleading, and because the paragraph eliminated is not, in our opinion, necessary to a decision of the case for the reason given in the next sentence below.

We are clearly of the opinion that this is a case which turns upon the facts, and that, on the undisputed facts in the case, reasonable men can with the utmost fairness draw more than the one inference which favors the insistence of the defendant; and so the facts in the case are for the jury to resolve as the triers of fact, and not for us to determine as matters of law. That this is true might well be urged from the concrete fact now confronting us and which causes this case to come before us, that reasonable men are drawing wholly different inferences from the undisputed facts. It is upon this ground, as the majority opinion as we amend it and adopt it well expresses the facts and well rules upon the law, that we are disposed to defer to the finding of the jury; regardless of the fact that we might have drawn a different conclusion and might have entertained different presumptions of fact if we were sitting where the triers of fact sat.

With this explanation and amendation of the opinion of the Springfield Court of Appeals, we adopt it, both as a statement of facts and as an expression of the law of the case. The opinion follows:

"This lawsuit originated in the probate court of Greene county, in 1908. The plaintiffs are the parents of Vernie Carmin, who was the wife of L. L. Carmin, deceased. The defendant is the administrator of the estate of said L. L. Carmin. The demand presented in the probate court was originally for the sum of $939, made up of five items, to wit; `$220.00 for money loaned L. L. Carmin to defray traveling expenses to California; $100.00 to defray funeral expenses of his wife; $129.00 to defray undertaker's expenses for the burial of the wife of L. L. Carmin; $200.00 for money had and received; and $300.00 for money had and received.' In the probate court the plaintiffs prevailed and were allowed the claim in full. The defendant appealed to the circuit court, and on trial before a jury, on June 26, 1909, the plaintiffs again obtained a judgment for $439, but subsequently entered a remittitur for $129, leaving the judgment stand for $310. The cause is now here on appeal by the defendant. On the trial in the circuit court, an instruction was given to the jury that plaintiffs were not entitled to recover on the items of $200 and $300 for money had and received, and, as the remittitur was entered for the $129 sued for as additional funeral expenses, the only items before us for review are the $220 item for money advanced for traveling expenses to California, and $100 loaned to defray funeral expenses.

"The facts of the case are as follows: The deceased, L. L. Carmin, married the daughter of the plaintiffs in 1899, and they afterward moved to Kansas City, and the old folks gave them a restaurant business. They continued in the restaurant business for about a year, when the father of the wife purchased the restaurant and gave her $500 in cash therefor. After this, the parties had no permanent home, but lived a part of the time with the plaintiffs at Sheffield. The daughter, Vernie, left her husband in 1906 and was last heard from at Sulphur Springs in September, 1906, from which place she wrote a card to her folks, stating she would write again in a few days. The next heard of her was in November, 1907, when her parents saw in a newspaper that she had been killed in California. Upon the receipt of this information, her father wired her husband to come to Kansas City. He immediately went to Kansas City, and there was a conversation between him and his father-in-law in regard to going to California after the remains. As a result of this conversation, $220 was furnished to Carmin by Linderman, and he went to California. The next heard of him was a telegram asking for an additional $100. The amount was wired to him. When he returned, he brought for burial the body of his wife, and returned to his father-in-law $10, being the amount he had left unexpended. The father made arrangements for the burial and paid, a few days after the burial, the expenses thereof, amounting to $129.

"In order to determine the merits of this controversy, it is...