Prior v. Hager, 25093

• Decision Date: 07 April 1969
• Docket Number: No. 25093,25093
• Citation: 440 S.W.2d 167
• Parties: Beecher PRIOR, Respondent, v. Rowena HAGER, Appellant.
• Court: Missouri Court of Appeals

Page 167

440 S.W.2d 167

Beecher PRIOR, Respondent, v. Rowena HAGER, Appellant.

No. 25093.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

J. F. Allebach, Albany, for appellant.

Beavers, Thomson & Beavers, Dick Thomson, Maryville, for respondent.

SHANGLER, Judge.

Beecher Prior, as plaintiff, brought his suit against Rowena Hager and her sons, Caryl E. Hager and Elbert Gene Hager, as defendants, upon the pleaded theory that he, Beecher Prior, as sole bodily heir of his mother, Sybil Prior, was entitled to the possession of and profits from the real estate (later described) under the Last Will and Testament of Henry W. B. Myrick, Sybil's father and plaintiff's grandfather. It should be understood that Sybil Prior and Rowena Hager were sisters. Rowena Hager, therefore, is plaintiff Beecher Prior's aunt, and Caryl E. Hager and Elbert Gene Hager are his cousins.

Although the petition recites a wrongful dispossession by defendants of the property since March 17, 1953 until February 11, 1964, with the attendant appropriation by defendants of the rents and profits therefrom, the proof presented was confined to the calendar years 1961, 1962 and 1963. Prior to trial plaintiff dismissed as to defendant Elbert Gene Hager. The trial was had to the court which found the issues in favor of plaintiff and against defendant Rowena Hager for $1,079.42 and against defendant Caryl Hager for $2,921.14. From the record, we are unable to understand the manner in which the sums taken in judgment against the respective defendants were derived. Only defendant Rowena Hager appeals from the judgment. In their briefs the parties refer to this action as one for an accounting. By whatever designation and by any permissible view of the pleadings and evidence disclosed by the record, the judgment against Rowena Hager may not stand in its present form.

No findings of fact or conclusions of law were requested, and none made. We have reviewed the case upon both the law and the evidence, as in suits of an equitable nature and have concurred in the contention of defendant Rowena Hager that, as to her, the evidence was not sufficient to support the judgment, which judgment was clearly erroneous. This is our independent conclusion after having given due regard for the trial court's opportunity to judge the credibility of the witnesses. V.A.M.R., Civil Rules, 73.01(d), 83.13(c).

The evidence itself is largely undisputed. Counsel contend, however, over what inferences may be legitimately drawn from it, and the proper resolution of the issues presented rests upon that determination. Plaintiff Beecher Prior did not testify, and it does not appear from the record that he was in attendance at the trial. Defendant Rowena Hager and Caryl E. Hager, as parties adverse to plaintiff, were presented as witnesses for plaintiff. Sandra Johnson, Administrative and Price Roport Clerk of the Agricultural Stabilization and Conservation (ASC) Program for Gentry County, Missouri, was called by plaintiff and was the only other witness presented at the trial. Defendants offered no evidence other than several documentary exhibits. We relate certain collateral events in order to lend coherence to the testimony within which it is framed.

Henry W. B. Myrick, father of Rowena Hager and of Sybil Prior (plaintiff's mother), died in 1937, having devised to Sybil Prior a life estate in the west one-half of an approximately 200 acre farm in Gentry County, Missouri. He devised to this other daughter, Rowena Hager, a life estate in the east one-half of the same farm. Sybil Prior died in 1953 and was survived by her only son, Beecher Prior. Defendant Caryl E. Hager, who can best be described as the family factotum, had operated both halves of the farm for some time before Sybil Prior's death in 1953 until February, 1963, when he was required to commence serving a three year term in the Missouri Penitentiary for defalcation of funds while serving as County Treasurer. In February, 1964, a receiver was appointed by the Circuit Court to operate the farm pendente lite. The receivership was incidental to a will contest suit brought by plaintiff and his daughter against numerous heirs and devisees of Mr. Myrick.

Defendant Caryl E. Hager, as previously stated, had operated the farm as a unit, working both the west half of it for some time before the death of Sybil Prior until the appointment of the receiver in 1964 and the east half, as well, for his mother, Rowena Hager. He kept separate account books for each half of the farm, but only one bank account.

Defendant Caryl E. Hager, more specifically, had commenced operating the west half of the farm some time in 1947 and, except for about a 2 or 3 year period, continued to do so until his penal commitment. Until Sybil Prior's death in 1953, he accounted to her for the profits and income from that property. Some time after her death, the ASC program was initiated in Gentry County and Caryl Hager made formal application for participation in the Agricultural Stabilization and Conservation Service, whereby certain monetary benefits would accrue for following certain conservation practices in the operation of the farm. He requested, and received, different designations for each half of the farm. The west (Prior) half, containing some 101.65 acres was listed as G 380; the east (Hager) half, containing some 94.82 acres was listed as G 320. 'To simplify the matter of (his) own bookkeeping, (he) had it listed as owner and operator both, with the ASC office, owner and operator for record purposes only.' The funds from this source for years 1961, 2 and 3 are the subject of this litigation. At this time (after Mrs. Prior's death in 1953), the farm was in need of many improvements and the money received from this program by Caryl Hager was used for its rehabilitation, and in so doing, he accounted to no one. He maintained detailed records of these operations but in July of 1967, while in Kansas City, they were stolen from his automobile, and although the theft was reported to the Kansas City, Missouri police, they were not recovered. Even without recourse to these records, he had a firm recollection that the 'running balance' at the time he left (presumably for the penitentiary in 1963) was $232.50, which represented a summary of his total operations as to G 380, including as well what further sums were payable under ASC for the year 1963. There was no expense, as such, incidental to participating in the ASC program, but without his records, he could not recall the gross income from that source.

He was urged by Mr. Ralph Ford, county chairman, to allow the ASC office to combine the two designations to facilitate record keeping but he felt members of the family might object, so he was obliged to refuse. Confusion resulted in the form of improper filings and erroneous numerical designations within the two files. Certain applications to participate in the various ASC programs were received as exhibits, as well as checks representing benefits received thereunder, but they will be treated separately as they might bear on Mr. Hager's testimony as well as that of the other witnesses.

Defendant Rowena Hager, mother of defendant Caryl Hager, left Gentry County after the death of her own mother about in the year 1952 and remained away until about 1963. She has but the sketchiest recollection of certain events which bear directly upon our full understanding of the total evidence. For instance, she did not recall who was in possession of the farm upon her return (and within the context of the questioning, it was not clear whether 'farm' connoted the entire acreage or only the west or east portions severally). Although she admittedly executed a power of attorney (defendants' Exhibit 7) authorizing her son Caryl, among other things, to commit her land to the ASC programs, she did not recall where or when it was done. Nor did she recall whether she had authorized her son Caryl, by her power of attorney, to execute her endorsement on plaintiff's Exhibit 20, a check issued by the Commodity Credit Corporation under date of November 19, 1963, payable to the order of 'Rowena Hager by Caryl Hager Pow. of Attn. Albany, Mo.', in the sum of $279.30 representing benefits derived from the west half under the ASC program. It can be fairly concluded that the only affirmative and material testimony given by this witness was that she had nothing to do with the west half of the farm (although even this innocuously self-serving assertion was disputed by some inconclusive testimony she had given in the will contest action), that she had never intended the power of attorney to be used with respect to land in which she had no interest, but that it was intended '* * * just to take care of my affairs.' She admittedly endorsed a payment check derived from the west half in the amount of $163.29, plaintiff's Exhibit 26, for payment over to the First National Bank of Big Springs, Texas.

Sandra Johnson, Administrative and Price Report Clerk with the Gentry County Agricultural Conservation Program, helped prepare that office's records for the feed grain and wheat stabilization programs. She identified numerous exhibits relating to the G 380 and G 320 operations committed to the several programs. The procedure for enlistment in the conservation and stabilization programs was remarkably casual. It was accomplished merely by word from one that he either owned or operated a farm and if thereafter a change in status should occur, he was relied upon to inform that office. Although the owner's signature was required upon the Intention to Participate and Application for (Advance) Payment, it was not required upon the Application for Final Payment. Should a farmer have signed the owner's name, a power of attorney would be required, although the action of a farmer-operator in committing the owner to the programs was not usually questioned. The power of attorney executed by defenda...