Lolordo v. Lacy

• Decision Date: 12 November 1935
• Citation: 88 S.W.2d 353,337 Mo. 1097
• Parties: John Lolordo, Administrator of the Estate of Vincenzo Lolordo, v. Verne R. C. Lacy, Appellant
• Court: Missouri Supreme Court

88 S.W.2d 353

337 Mo. 1097

John Lolordo, Administrator of the Estate of Vincenzo Lolordo, v. Verne R. C. Lacy, Appellant

Supreme Court of Missouri

November 12, 1935

Rehearing Granted, Reported at 337 Mo. 1097 at 1109.

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge; Opinion filed at May Term, 1935, July 9 1935; motion for rehearing overruled July 30, 1935; motion to transfer to Court en Banc filed; motion overruled at September Term, November 12, 1935.

Affirmed.

Verne R. C. Lacy, pro se.

(1) Verdicts must be based upon substantial evidence and not upon speculation or conjecture; and it is within the province of appellate courts to determine whether substantial evidence exists. Kapros v. Pierce Oil Corp., 25 S.W.2d 781; Watkins v. Bird-Sykes-Bunker Co., 16 S.W.2d 43; Wells v. Lusk, 188 Mo.App. 63, 173 S.W. 751; O'Neil Imp. Mfg. Co. v. Gordon, 269 S.W. 640; De Maet v. Fid. Storage Co., 121 Mo.App. 92, 96 S.W. 1049; Moon v. Brown, 172 Mo.App. 516, 158 S.W. 82; Chandler v. Hedrick, 187 Mo.App. 664, 173 S.W. 95; Christner v. Ry. Co., 64 S.W.2d 756. (2) A party cannot impeach a witness whom he has introduced, or offer evidence for the sole purpose of impeaching such a witness unless he has shown that he has been entrapped by such witness, or has been surprised by his testimony. Brown v. Woods, 19 Mo. 476; Helling v. United Order of Honor, 29 Mo.App. 317; Imhoff v. McArthur, 146 Mo. 371, 48 S.W. 457; Dunn v. Dunnaker, 87 Mo. 600; Detjen v. Moerschel Brewing Co., 157 Mo.App. 614, 138 S.W. 697; Vernon v. Rife, 294 S.W. 749; Claflin v. Dodson, 111 Mo. 195, 19 S.W. 713. (3) Cases involving the correctness of long accounts are not properly triable before a jury, but require a reference and it is within the province of appellate courts to order such a reference. Sec. 976, R. S. 1929; Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791; Ittner v. Association, 97 Mo. 561, 11 S.W. 58; Smith v. Ohio Millers' Mut. Fire Ins. Co., 6 S.W.2d 920; Bank of Oak Ridge v. Duncan, 40 S.W.2d 656; Collins Bros. Drug Co. v. Graddy, 57 Mo.App. 41.

James J. Seeley and Claudio Delitala for respondent.

(1) In determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered in the light most favorable to the prevailing party. Therefore, it was not error to overrule defendant's demurrer to the evidence at the close of the case. Brennecke v. Lumber Co., 329 Mo. 341, 44 S.W.2d 627; Linderman v. Carmin, 255 Mo. 62, 164 S.W. 614. (a) A verdict upon conflicting evidence, approved by the trial court, should not be disturbed on appeal. Jones v. McGinley Land Co., 74 S.W.2d 853; Dunn v. Oil Dev. Co., 318 Mo. 139, 1 S.W.2d 127; Bank of North America v. York, 89 Mo. 369, 14 S.W. 560. (2) A party is always entitled to show the truth in contradiction to what his own witness may have testified to. Therefore, it was not error to permit plaintiff to elicit from another witness facts contradictory to defendant's testimony when called as a witness by plaintiff. Smith v. Ohio Millers' Mut. Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920; Brosius v. Lead & Zinc Co., 149 Mo.App. 186, 130 S.W. 134; Imhoff & Co. v. McArthur, 146 Mo. 377, 48 S.W. 456; Vernon v. Rife, 294 S.W. 749. (3) The issues upon interrogatories and answers in proceedings for concealment of assets are triable to a jury by express statutory provision. Therefore the court could not properly consider a request to transfer cause to equity division. Sec. 66, R. S. 1929. (a) Application for reference to a referee must be decided from the pleadings as they were when application was made. Buchanan v. Rechner, 333 Mo. 634, 62 S.W.2d 1071; Smith v. Ohio Millers' Mut. Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920; Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052. (b) Absent exception to adverse ruling, alleged error in refusal to appoint a referee is not reviewable. Vazis v. Zimmer, 209 S.W. 909; Bank of Darlington v. Atwood, 224 Mo.App. 974, 36 S.W.2d 429; State ex rel. Burns v. Shain, 297 Mo. 369, 248 S.W. 591; Klotz v. Perteet, 101 Mo. 213, 13 S.W. 959. (c) Alleged error in refusing to refer cause to a referee is not reviewable where not presented by motion for new trial. Vazis v. Zimmer, 209 S.W. 909; Commercial Bank of Jamesport v. Songer, 74 S.W.2d 100; Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891; Minium v. Solel, 183 S.W. 1037.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is a statutory proceeding to discover assets commenced in the Probate Court of the City of St. Louis which plaintiff as administrator of the estate of Vincenzo Lolordo alleged that defendant wrongfully withheld. Said assets were alleged to be "$ 18,000 cash proceeds from the sale of 3103 and 3220 Washington Avenue, City of St. Louis, Missouri." Interrogatories concerning these transactions were propounded and answered by defendant who stated that he sold the properties mentioned at foreclosure sales as trustee under deeds of trust thereon and that he had accounted to the administrator for the proceeds thereof. Upon the defendant's application, the matter was certified by the probate court to the circuit court. The case was there tried before a jury which returned a verdict for plaintiff for $ 10,978. Defendant has appealed from the judgment entered thereon.

Defendant makes three assignments of error as follows: (1) The court erred in overruling defendant's demurrer to the evidence at the close of the case; (2) that the court erred in permitting plaintiff to impeach the testimony given by defendant when called as a witness by plaintiff; (3) that the court erred in not referring the case to a referee and in not passing upon the question of reference. These assignments will be considered in inverse order.

Assignment No. 3 cannot be considered because not properly preserved for review. There is no ground stated in defendant's motion for new trial concerning failure to refer the case to a referee, but only complaints that the court erred in refusing to transfer the case to the equity division and that the court did not dispose of defendant's application for such transfer. The record does not show that such an application for transfer was overruled or otherwise acted upon. The record does show that on the same day that the motion was filed the case was assigned to Division Nine; that the trial commenced on that day; and that before any witnesses were heard defendant's counsel called the attention of the trial court to the motion to transfer. The record further shows that defendant's counsel explained the nature of the case to the court and that the court said "Well, there is nothing complicated about that." Plaintiff's counsel then stated that "the statute provides these matters be tried before a jury" and asked the court to hear it before a jury. The court said: "All right, file your motion." Defendant's attorney said: "In the course of the trial, Your Honor can pass on it." The court replied: "Yes, as the matters come up from time to time, I'll pass on them." There is no further reference in the bill of exceptions to this motion. A jury was selected and plaintiff's counsel proceeded to make his opening statement and call his witnesses. If the remark of the court can be considered as a ruling, no exception was saved to it, and it was not called to the court's attention by the motion for new trial. Objection to a reference or to a failure to refer is a matter to be raised by exception. Therefore, there is nothing upon which we can act. [Secs. 1008 and 1061, R. S. 1929; Bank of Darlington v. Atwood, 225 Mo.App. 974, 36 S.W.2d 429; Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 732; State ex rel. Kimbrell v. People's Ice, Storage & Fuel Co., 246 Mo. 168, 151 S.W. 101; see, also, Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052, and cases cited.]

Defendant's second assignment must be overruled. The rule as to impeaching a party's own witnesses does not apply to such testimony of his adversary as was given in this case under the circumstances here. Our statute, Section 1725, Revised Statutes 1929, provides that either party has the right to compel the opposite party to testify and may examine him under the rules of cross-examination. The very purpose of cross-examination is to test the correctness of a witness's story and is in the nature of an attack upon its truth or accuracy. The privilege of thus examining an adversary is granted, because, as said by this court en banc "There is nothing in the law counter to the Biblical admonition 'By thy words thou shalt be condemned.' Matt. XII, 37." [Smith v. Ohio Millers' Mutual Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920, l. c. 928.] Neither is there anything to prevent the plaintiff, after so examining the defendant, from producing whatever evidence he can to show that "what he says is not strictly in accord with the truth" and to leave it to the court or jury "to place a proper estimate on it." In any case where a party desires to prove an essential part of his case by his opponent, he is permitted to do so, and he is only bound by the part of his adversary's testimony which he himself offers and vouches for as the truth. A party cannot be permitted (except where there is an honest mistake) to later deny what he, himself, claims to be the truth and that is why he is bound by the evidence of the witnesses he produces to prove the allegations of his pleadings. He is not even bound by their testimony if, to his surprise, they turn out to be unfriendly or testify to the contrary of what he has in good faith been led to expect. [Smith v. Ohio Millers' Mutual Fire Ins. Co., supra, and cases therein cited.] Plaintiff here at all times claimed that defendant had not paid to the Lolordo estate the proceeds of the foreclosure sales. He pu...