Mack v. Acacia Mut. Life Ass'n

• Decision Date: 06 November 1933
• Parties: DAISY L. MACK, RESPONDENT, v. ACACIA MUTUAL LIFE ASSN., APPELLANT
• Court: Kansas Court of Appeals

65 S.W.2d 1045

228 Mo.App. 212

DAISY L. MACK, RESPONDENT, v. ACACIA MUTUAL LIFE ASSN., APPELLANT

Court of Appeals of Missouri, Kansas City

November 6, 1933

[Copyrighted Material Omitted]

228 Mo.App. 212 at 218.

Original Opinion of November 6, 1933, Reported at: 228 Mo.App. 212.

Motion denied.

OPINION

ON MOTION FOR REHEARING.

SHAIN P. J.

Counsel for defendant in his motion for rehearing insists that our conclusions on the question of the settlement contract, to the effect that there was no lawful consideration for same under conditions shown, is based upon a theory not presented in the lower court.

The first point made by defendant in its brief is the assertion that the acceptance of the money paid barred plaintiff's action. A question of law being thus raised by defendant, it certainly became the duty of the court to determine same. The fact that the court gives reasons for its conclusions on a point raised by an appellant does not conflict with the rule that an appellate court must determine the issues on the same theory as presented and determined in the lower court.

Defendant complains that this court did not give consideration of its contention that acceptance of benefits of the actions of an attorney, even though not employed, bound the plaintiff.

As to the employment of Mr. Mitchell we stated in substance that the question of his employment was one for the jury.

As to the other phase now complained of, suffice it to say, that this court having, for reasons assigned, found that plaintiff received nothing that she was not entitled to receive and that defendant parted with nothing that it was entitled to retain, eliminates the question raised that plaintiff received benefits by the services.

Our conclusion in the above matter is based upon the above and not upon any depreciatory holding as to the services of the learned counsel in question. We are glad to say that there is nothing shown in the record of this case, which reflects upon his professional conduct or which reflects upon his right to make charges for the same, and in the light of our conclusion, defendant got more in plaintiff's instruction No. 1 than it was entitled to when the recovery by plaintiff was predicated upon the question of whether the attorney was employed or not.

As to the omission, in the opinion, of the record evidence upon which we based our conclusion as to duress being an issue of fact in the case, we concluded that as the defendant so completely submitted the issue of duress in its given instructions "L" and "M," that the burdening of the opinion with the facts shown in the record as to that issue was superfluous. Further, it appears shown by the record that defendant did not raise the issue by demurrer nor otherwise than by objection to a refusal of its instruction "C," and as before stated, defendant thereafter submitted the issue by its offered instruction. However, even to the extent of unnecessary length of judicial opinion and for the satisfaction of complaining counsel, we quote testimony of plaintiff as follows:

"They told me if I didn't sign it, there would be things brought out about my husband's character that would not be--business dealings that would be a disgrace to the family. They came in the bedroom. I didn't know I signed two things. They said they did not think they owed me anything. I did not read what I was signing. I didn't want to sign it but they told me to sign it."

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