Rapp v. Rapp
| Decision Date | 05 March 1951 |
| Docket Number | No. 21528,21528 |
| Citation | 238 S.W.2d 80 |
| Parties | RAPP v. RAPP. |
| Court | Missouri Court of Appeals |
Harry H. Kay, Eldon, for appellant.
S. W. James, Jr., Jefferson City, for respondent.
This suit seeks the cancellation of a change of beneficiary in a death benefit certificate issued to Robert Rapp by his employer, General Mills, Inc. The certificate was issued in December, 1941, naming Robert's wife, Inez, as beneficiary; on December 22, 1945, Robert, in the presence of the Personnel Director of General Mills, executed the written change of beneficiary designating his mother, Dorothy Rapp, as the principal beneficiary, and his father, Charles Rapp, as alternate beneficiary. The suit seeks the cancellation of the change on the ground of mental incompetency and undue influence. The cause was tried before the court, resulting in a judgment for cancellation. The defendant has appealed.
Error is assigned upon the admission of certain evidence and that there is no substantial evidence to support the finding that Robert did not have mental capacity to make the change, and was unduly influenced to do so by his mother. This necessitates rather an extended statement of the facts.
A broad outline of the evidence is to the effect that Robert and Inez were married in June, 1937, at which time she was 27 years of age and he was 20. They and their families had lived in or near Stover, Missouri, and had known one another for many years. Robert's father was opposed to the marriage because neither of the young people had any property or a home to move to, and he thought Robert should accumulate something before marrying any girl. However, Robert's mother signed the consent and they were married. During the next four years they lived on various farms in the Stover community; Robert's father assisted them by arranging for places for them to live, giving them two or three cows, and furnishing some money, and in 1939 he purchased a farm and gave it to Robert; in May, 1941, Robert and Inez decided to leave the farm and come to Kansas City where he entered a mechanical school and, after attending for three months, secured a position with General Mills, Inc., where he worked until he died in April, 1946. When he left the farm he told his father to take it and do whatever he wanted to with it. In the summer of 1943 an abrasion or spot developed on Robert's ear and in due time he went to Dr. Lapp of Kansas City who removed that 'small pigmented lesion.' It was the opinion of Dr. Lapp that this was 'a most malignant type of lesion * * * one form of cancer * * * and a particularly dangerous type of growth.' However, he did not tell Robert of his conclusion, but advised him that if a 'lump' appeared on his jaw or neck he should go to a hospital for treatment. In June, 1944, a lump did appear and he eventually went to the cancer hospital in Columbia, Missouri, and was operated on by Dr. Sugarbaker. In a few weeks he returned to work, but in March, 1945, he again went to the cancer hospital and underwent another severe operation; the following July he returned to General Mills and worked until March, 1946, when his condition suddenly became much worse, and on March 28 he was brought by ambulance to his father's home in Stover and died April 9.
The plaintiff, Inez Rapp, testified that Robert had suffered from headaches since she had known him and working in the hot sun aggravated the condition; that when they visited in his parents' home they would criticize her and Robert because they were not doing more work and getting ahead; that his father thought Robert should remain on the farm and not go to Kansas City and would not assist him financially to make the move; that her sister, Mrs. Williams, loaned them sufficient money to go to Kansas City; that when they would return to Stover for a visit his parents continued to criticize her, and on one occasion the mother referred to her cooking as 'hash'; this occurred in September, 1942; Inez had prepared a 'pot roast' and when they were at the table Mrs. Rapp said, 'we will pass the hash'; that Mr. and Mrs. Rapp criticized the way she and Robert disciplined their two children, both of whom were born after they moved to Kansas City; that his parents did not visit her when she was confined in the hospital at Kansas City at the birth of the children; that Robert was happy about the birth of the first child, who was born in February, 1942, but that he did not want the second child, who was born in November, 1943; that about this time his headaches became more frequent and intense and he had trouble sleeping; that this was about the time the spot was removed by Dr. Lapp; that about this time Robert's parents came to Kansas City to visit him for two or three days and they all returned to Stover, at which time the parents renewed their criticism of the manner in which she disciplined the children, and on one occasion Mr. Rapp said 'she didn't know enough to pin the diapers on'; that they criticized the way she kept her house; that this criticism and fault finding continued until Robert's death. Apparently the first trouble she and Robert had was shortly after the second child was born; he brought her home from the hospital and they had a quarrel over his 'spanking their boy'; that he left 'in a fit of temper' and went to Stover for the week-end and when he returned he was still mad. On that occasion Inez' sister-in-law, Mrs. Raymond Rapp, was staying with her, she was not left alone. She then tells of Robert's first visit to the cancer hospital in 1944 and of the operation performed at that time; that he was in the hospital about a month, and after his release they stayed at her sister's home until he was able to return to work in October; that after they got back to Kansas City Robert 'was changed,' 'was critical,' 'had more temper,' 'was in pain,' 'was aggravated by the children and was never satisfied'; that 'things got pretty rocky'; that in March, 1945, he returned to the hospital for the second operation and when he was released he returned to the home of his parents; that she had been staying with her parents near there, and that she went to see him and stayed two or three days; that he was in much pain; that Dorothy Rapp told her that the children were too noisy and aggravated Robert and suggested that she take them to her sister's home, which she did; that the next day Robert went to Kansas City for two or three days, and upon his return they stayed at her sister's home until July 7; that during that time they visited his parents, and Dorothy Rapp again complained of the children's being spoiled, noisy and extravagant; when asked how his parents treated her when she was in their home, she said: 'Well, of course, it was just a constant little nick here and a nick there. * * * the work wasn't kept up like it should be.' In July (1945) Robert returned to Kansas City without her and there was a period of about two months that she did not hear from him and did not know where he was; that she asked his parents about him and they told her they did not know where he was; that she requested her brother, Glenn Martin, to go to Kansas City to see if he could locate him; that Martin found him at work at the Mill and visited with him, but Robert did not or would not tell him where he was living. Apparently Inez and Robert did not live together after he came to Kansas City in July, 1945. She also testified that she found a letter in a trash can in Robert's room signed 'Louise' (the date of which is not given); that after Robert's death she found a picture of Louise Leedom in his billfold; that she saw this woman in the Rapp home when Robert was dying; that she last saw her husband about 6 p. m. before he died during the night; that Dorothy Rapp told her at that time to go to her sister's home and let Robert die in peace. There are other general statements by Inez to the effect that Robert's parents were not kind to her, but they are of such a general nature that we deem it unnecessary to go into greater detail. On cross-examination she admitted that Mr. Rapp had paid $75 on the hospital bill for the birth of the first child; that he had loaned Robert money several times and that it had not been paid back, that Robert said all he got that way was all he would get; that in February, 1945, she wrote a letter to Robert's parents advising them that Robert was threatening to divorce her and asked them to come up and see what they could do about it; that they did come and brought her sister and brother with them, but that the matter of divorce was not discussed, and after a visit of two or three days they all returned to the Rapp home in Stover, and shortly thereafter Robert went to the cancer hospital for his last operation. She did not know Robert had insurance until Dorothy told her about it the evening before he died.
We do not find in her testimony any specific unkind remark Robert ever made to her. She does speak of him as being 'mad,' 'nervous,' 'critical,' without detailing any fact as a basis for such a general conclusion. She is very critical of his parents because of their treatment of her. But let us consider the statement of Mr. Rapp that 'she didn't know enough to pin the diapers on'; she identified a kodak picture of herself and Mr. Rapp attempting to put a diaper on the baby, they were both laughing; Mr. Rapp testified the whole thing was all in fun. From an examination of the picture, it is reasonable to infere that the only person entitled to be offended because of that episode is the baby.
It appears from the record that sometime after Robert's death Inez sued his mother and father for alienation of affection; the outcome of that case is undisclosed and is of no importance. But it lends support to the conclusion that many of the small conflicts and unpleasantness of married life have been greatly magnified. The trial judge recognized this because, in reviewing the...
To continue reading
Request your trial
-
Willis v. Willis
...v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)] obtains until it takes flight and vanishes in the light of contrary evidence [Edwards v. Business Men's Assur. Co. of America, 35......
-
Forbis v. Forbis, 7337
...v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)]; that the burden of proving the invalidity of a marriage rests upon him who asserts such invalidity [Osmak v. American Car & Foun......
-
Reidinger v. Adams
...135, 143; Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13, 18; State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360, 363; Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91. Moreover, one of contestants' verdict directing instructions was to like effect. It stated that if testator's mind was subject ......
-
Gibson v. Gibson-Cato, GIBSON-CAT
...that when J.B. executed Exhibit 3, he did not have sufficient mental capacity to make a valid change of beneficiary. See: Rapp v. Rapp, 238 S.W.2d 80, 91 (Mo.App.1951). Our second observation about Norma's second point is that it is arguably deficient under Rule 84.04(d) and Thummel, 570 S.......