Ross v. Pendergast

• Decision Date: 05 September 1944
• Docket Number: 38888
• Parties: Charles C. Ross, Appellant, v. Florence Ross Pendergast and Lucille Ross Hamilton, Executrices of the Estate of Michael Ross, Deceased
• Court: Missouri Supreme Court

182 S.W.2d 307

353 Mo. 300

Charles C. Ross, Appellant, v. Florence Ross Pendergast and Lucille Ross Hamilton, Executrices of the Estate of Michael Ross, Deceased

No. 38888

Supreme Court of Missouri

September 5, 1944

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded.

James Daleo, Robert M. Zehring and Bowersock, Fizzell & Rhodes for appellant.

(1) Instruction C, given at the request of the defendants below was erroneous because it injected into this case totally foreign issues, namely, the subject of gifts and the claims or rights of the other children of Michael Ross, deceased, in and to envelopes found in the safe deposit box of said deceased. State ex rel. Grisham v. Allen, 344 Mo 66, 124 S.W.2d 1080; Rucker v. Alton Railroad Co., 343 Mo. 929, 123 S.W.2d 24; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286; Krelitz v. Calcaterra, 33 S.W.2d 909; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (2) Instruction D, given at the request of the defendants below, was erroneous because it submitted to the jury a legal presumption in favor of the defendants and imposed too great a burden on the plaintiff in order to rebut such presumption and permit a verdict for the plaintiff. Westbay v. Milligan & Son, 89 Mo.App. 294; Morton v. Heidorn, 135 Mo. 608, 37 S.W. 504; State ex rel. Detroit Fire & Marine Ins. Co. v. Ellison, 268 Mo. 239, 187 S.W. 23; Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d 710; Dove v. A., T. & S.F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548; Seago v. N.Y. Central R. Co., 349 Mo. 1249, 164 S.W.2d 336. (3) Instruction F, given at the request of the defendants below, was erroneous because it imposed upon the plaintiff a greater burden of proof than the law requires. Further, such instruction injected a foreign issue into this case, namely, whether or not the plaintiff asserted his ownership of the envelope in controversy for the first time, after his father's death, and then misdirected the jury on this foreign issue. An instruction requiring the plaintiff to prove his case without explaining how such proof is to be established is erroneous because the jury might conclude that the plaintiff had the burden of proving his case beyond any doubt in the mind of the jury. An instruction that, in case of doubt, the jury must find for the defendant, is erroneous. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; Aly v. Terminal R. Assn., 336 Mo. 340, 78 S.W.2d 851; Dempsey v. Horton, 37 Mo. 379, 84 S.W.2d 621; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767. (4) If this were a case where the plaintiff was attempting to enforce either a gift inter vivos or a gift causa mortis, he would have to establish the essential elements of the gift by clear, convincing and conclusive evidence. Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563; Ray v. Hooper, 204 S.W. 30; Cremer v. May, 8 S.W.2d 110; Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; In re Estate of Sophie Franz, 344 Mo. 510, 127 S.W.2d 401. (5) This case, however, does not involve a gift inter vivos or a gift causa mortis and the instruction placing upon the plaintiff the burden of proving his case by clear, cogent and convincing evidence, satisfying the minds of the jury beyond a reasonable doubt, was erroneous. Kirchner v. Collins, 152 Mo. 394, 53 S.W. 1081; Brooks v. Roberts, 281 Mo. 551, 220 S.W. 11; Eisenbarth v. Powell Bros. Truck Lines, Inc., 161 S.W.2d 263. (6) Instruction G, given at the request of the defendants was erroneous in telling the jury that the plaintiff could not establish his case merely by the admissions or declarations of his father. Such instruction was further erroneous and prejudicial to the plaintiff because it singled out and commented upon a vital part of the plaintiff's evidence, constituted a disparagement of such evidence and invaded the province of the jury. Admissions and declarations against interest are admissible in evidence. Cole v. Armour, 154 Mo. 333, 55 S.W. 476; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; Rinkel v. Lubke, 246 Mo. 377, 152 S.W. 81; Bunker v. Fidelity Natl. Bank & Trust Co., 335 Mo. 305, 73 S.W.2d 242; Shern v. Sims, 258 S.W. 1029. (7) There is a strong presumption of the truth of declarations against interest. Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86; Cape County Savs. Bank v. Wilson, 225 Mo.App. 14, 34 S.W.2d 981. (8) Statements contained in opinions in equity cases that certain alleged declarations against interest were alone entitled to but little weight must be restricted to the particular facts before the courts in such cases. Curd v. Brown, 148 Mo. 82, 49 S.W. 990; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432. (9) Statements made in opinions arguendo are not meant to be used in instructions to juries. Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58. (10) Comments upon the evidence by the trial court are not permitted in this State. Laible v. Wells, 317 Mo. 141, 296 S.W. 428.

Lawrence R. Brown and Paul R. Stinson for respondents; Ryland, Stinson, Mag & Thomson of counsel.

(1) Instruction C was properly given. Monsour v. Excelsior Tobacco Co., 144 S.W.2d 62; Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316; Brand v. Herdt, 45 S.W.2d 878, 880. (2) Instruction D was properly given. Phillips v. Scholl, 21 Mo.App. 38; Duncan v. Gage, 250 S.W. 647; Jungeman v. Brewing Co., 38 Mo.App. 458; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; State v. Doder, 121 S.W.2d 263; Berry v. Adams, 71 S.W.2d 126; Mowry v. Vettering, 204 Mo. 173, 103 S.W. 15; Miller v. Marks, 20 Mo.App. 369; Allemong v. Peoples, 75 Mo.App. 276. (3) Instruction F was properly given. Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; In re Franz Estate, 344 Mo. 510, 127 S.W.2d 401; St. Louis Union Trust Co. v. Busch, 346 Mo. 1237, 145 S.W.2d 426; Jeude v. Eiben, 338 Mo. 373, 89 S.W.2d 960; Thomson v. Johnston, 260 S.W. 100; Manley v. Ryan, 126 S.W.2d 909; Albrecht v. Slater, 233 S.W. 8; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; 28 C.J. 681, sec. 86(5); Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370; Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563; Cramer v. May, 223 Mo.App. 57, 8 S.W.2d 110. (4) Instruction G was properly given. Johnson v. Quarles, 46 Mo. 423; Rothemeier v. Veith, 334 Mo. 1030, 69 S.W.2d 930; Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370; 28 C.J. 681, sec. 87; Thomson v. Johnston, 260 S.W. 100; Russell v. Sharp, 192 Mo. 270, 91 S.W. 134; Peters v. Peters, 312 Mo. 609, 280 S.W. 424; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Perry v. First Natl. Bank, 228 Mo.App. 486, 68 S.W.2d 927; Napier v. Eigel, 164 S.W.2d 908; State v. Garrish, 29 S.W.2d 71; State v. Pope, 338 Mo. 919; State v. Shelton, 223 Mo. 118.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This is a suit in replevin wherein plaintiff seeks to obtain possession of an envelope containing $ 14,500 in currency found in a safe deposit box of Michael Ross after his death. A trial before a jury resulted in a verdict for the defendants, executrices of the estate of Michael Ross. Plaintiff appealed from the judgment entered.

All parties concerned were children of Michael Ross who died testate in Jackson county, Missouri, leaving a large estate. By his will he devised his property share and share alike among his ten children. In a safe deposit box over which Michael Ross had exclusive control fourteen envelopes were found containing currency and bonds. These envelopes contained various amounts of money ranging from $ 2500 to $ 18,000. Each envelope bore the name of one of the children, except one containing $ 100,000 in currency on which appeared the name of the deceased. An envelope bearing the name of plaintiff, which is the bone of contention in this lawsuit, contained $ 14,500. Two envelopes, marked Lucille Hamilton, one of the executrices, contained a total of $ 20,725.50. Another envelope bearing the name of the other executrix, Florence Pendergast, contained $ 15,000 in United States bonds. The only child for whom there was no envelope was Neal Ross. When these envelopes were discovered the executrices advised with attorneys and it was decided that the contents should be inventoried as part of the estate, which was done. Later plaintiff filed this suit claiming that the contents of the envelope bearing his name was his property.

The only points briefed by appellant pertain to instructions given by the trial court. We therefore need not review the evidence in detail. Plaintiff claimed that the $ 14,500 was his property and that his father had been keeping it for him. He contends on this appeal that that was the theory on which he tried the case below, and therefore instruction "C", given on behalf of the defendant on the theory that the money was intended to be a gift from his father, was erroneous. Plaintiff's instruction, however, was broad enough to authorize a jury to find for him on the theory that the money was his property by reason of being a gift. Note plaintiff's instruction:

"The Court instructs the jury that if you believe and find from the evidence that the defendants, Florence Ross Pendergast and Lucille Ross Hamilton, were appointed the Executrices of the Estate of Michael Ross, deceased, by the Probate Court of Jackson County, Missouri, at Kansas City, prior to the institution of this suit and are still such Executrices, and

"If you further believe and find from the evidence that said defendants, as such Executrices, prior to the institution of this suit took into their possession the envelope and its contents sought to be...