Roth v. Roth
| Citation | 5 A.L.R.4th 350,571 S.W.2d 659 |
| Decision Date | 01 August 1978 |
| Docket Number | Nos. 38789,38794,s. 38789 |
| Parties | , 26 UCC Rep.Serv. 1296 Roland ROTH, Plaintiff-Respondent, v. Anna ROTH, G. H. Walker & Co., a partnership, Mercantile Trust Company National Association, Union Electric Company, Manufacturers Hanover Trust Co., Fidelity Fund, Inc., Puritan Fund, Inc., the National Shawmut Bank of Boston, Broad Street Investing Corporation, Irving Trust Company, and Union Service Corporation, Defendants-Appellants. . Louis District, Division Four |
| Court | Court of Appeal of Missouri (US) |
Francis A. Casserly, Biggs, Casserly, Barnes, Fickie & Wolf, Clayton, for defendant-appellant Anna Roth.
Coburn, Croft, Shepherd, Herzog & Putzell, Joseph R. Soraghan, Thomas H. Rost, St. Louis, for defendant-appellant G. H. Walker & Co.
Campbell & Campbell, P. C., David L. Campbell, Clayton, Sommers & Holloran, Inc., Don B. Sommers, St. Louis, for plaintiff-respondent.
This equity action arises out of an unfortunate family dispute between Roland Lee Roth (Roland) who sued his mother Anna Roth (Anna), G. H. Walker & Company (Walker), a partnership, and others to establish a constructive trust and to recover his share of the value of certain bank certificates of deposit and shares of stock. Walker is a stockbroker, a dealer in investment securities. There was a judgment: (1) in favor of Roland and against Anna in the amount of $5,750.00 principal and $3,077.00 interest for conversion of savings certificates; (2) in favor of Roland and against both Anna and Walker in the amount of $13,992.63 principal and $4,102.28 in dividends for conversion of shares of corporate stock; (3) in favor of Anna and against Walker on a cross-claim filed by Walker; and (4) in favor of Roland and against both Anna and Walker in the amount of $6,740.00 for attorney's fees. Anna and Walker appeal from the judgments in favor of Roland and Walker appeals from the judgment rendered against it on its cross-claim.
Roland has filed a motion to dismiss the appeals of both Anna and Walker for noncompliance with the rules and for damages for vexatious appeal. The motion characterizes the appeals as frivolous. The briefs filed by both appellants do not comply strictly with the rules as to the statement of the points relied on, but the appeals are not frivolous. Instead, they indicate a good faith effort to set forth claims of error believed by the appellants to support a reversal. Certain defective points relied on will be considered and discussed in subsequent paragraphs. The motion to dismiss the appeals is denied.
Roland Lee Roth was 24 years old in 1956 when he was discharged from the armed services. He lived with his parents, Arnold Roth and Anna Roth, until the death of his father April 14, 1961. During that time he turned his entire paycheck over to his mother who used it, along with the father's earnings and other money coming to the household, for living expenses and investments. She gave Roland whatever sums he needed for clothing, recreation and other expenses. Roland worked at the Fisher body plant of the General Motors Corporation when work was available there but in the years before his father's death he was laid off from time to time and found work at other establishments.
Prior to Arnold Roth's death, he and his wife invested funds in stocks and bank accounts, all of which were held in their names as tenants by the entirety or as joint tenants with the right of survivorship. After Arnold's death, Anna had the shares transferred to the joint names of herself and her son, Roland, as joint tenants with the right of survivorship.
Roland worked steadily at the Fisher body plant of the General Motors Corporation after 1961 and continued to turn over his paycheck to his mother until September 20, 1967 when he left his mother's house to be married. Anna had other income by way of social security, dividends and interest and $10 weekly from a boarder. From time to time after her husband's death and until 1963, Anna obtained casual employment with various employers. From 1963 to 1967 she was unemployed. Anna received insurance payments upon her husband's death but there was no evidence of the exact amounts.
Anna continued to give Roland money for clothes, recreation and other expenses. She also paid household expenses out of the proceeds of his check and Roland testified that the money left over after all expenses were paid was used for investments. Roland declared his mother as a dependent on his tax returns. Neither party kept any accounting of contributions, expenses or amounts invested. They enjoyed a steady income and managed to save enough to invest in stocks and savings certificates, all of which were put in the names of Anna and Roland as joint tenants with the right of survivorship.
Anna took a more active role in the control of the stocks and their investment planning than did Roland. The stock certificates were kept in a safe-deposit box which was in Anna's name. The broker at G. H. Walker & Company, Joseph W. McCormack, testified that Anna called him to discuss the brokerage account and give him instructions. He could not recall whether Roland had ever telephoned him with instructions on transactions. Anna and Roland went down to the broker's office together when investments were made and papers needed to be signed and Roland always helped to decide what investments to make. No joint tenancy agreement was ever filed for their account with Walker. Such an agreement allows either joint tenant to act on behalf of the other.
In September of 1967, Roland and his mother had an argument over Roland's plans to marry and Roland left home. Within the next few days, Anna went to Mr. McCormack at Walker and told him she wanted to transfer all of the stocks out of the joint tenancy and into her name alone. Mr. McCormack told her she would have to obtain Roland's signature on the necessary stock powers and on a letter of instruction before he could accomplish the transfer. He gave Anna the necessary forms and she later returned the stock powers and the letter of instruction signed by her and containing signatures Anna said were Roland's.
Without any attempt to contact Roland to confirm his assent to the destruction of his interest in the shares, or to ascertain that this was, indeed, his signature, Mr. McCormack guaranteed the genuineness of the signatures. In reliance on this guarantee, the issuers transferred all the shares into Anna's name.
William Storer, a qualified handwriting expert, testified unequivocally that Roland's signatures on the stock powers and letter of instruction were forged by whoever signed the name "Anna Roth". Anna admitted that she signed her name to the documents.
Similarly, two of three certificates of deposit from Mercantile Bank were presented for reissue endorsed by Anna and purportedly endorsed by Roland. They were reissued in Anna's name alone on the basis of these endorsements. The signatures on two of the certificates of deposit were forgeries, according to the expert witness, and were placed on the documents by the same person who signed the name "Anna Roth". Roland in 1966 endorsed the other certificate of deposit which was in the face amount of $10,000, but he signed it only for the purpose of allowing it to be deposited as collateral for a home improvement loan for his mother's house. It, too, was transferred to Anna's name alone upon Anna's request and without Roland's knowledge. Roland testified that he signed the one $10,000 certificate but denied that he signed the stock powers, the letter of instruction or the other two certificates of deposit.
The following shares of stock and certificates of deposit are in question:
Value at Date of Transfer
to Anna Roth
-------------------------
353 shares Puritan Fund $4,115.98
500 shares Fidelity Fund 10,150.00
210 shares Union Electric 4,912.90
549 shares Broad Street 8,844.39
Savings Certificate #15136(face value) 10,000.00
Savings Certificate #25872(face value) 1,000.00
Savings Certificate #27253(face value) 500.00
The dividends paid on the shares after the transfer to Anna totaled $8,234.03.
Roland brought suit against Anna, Walker and certain corporate defendants in four counts, the first alleging a constructive trust and asking for certain equitable relief including a decree that one-half of the assets of the trust estate be distributed to him. The second count alleged that one-half of the assets were the property of Roland and that Anna had converted them to her own use and prayed for a money judgment against Anna. The third count for a money judgment against Walker alleged negligence and breach of fiduciary relationship. The defendants in count four were various corporations which issued the stock certificates in question.
Defendant Walker cross-claimed against Anna for the amount of any judgment which might be rendered against it, claiming that any liability incurred by Walker was the direct and proximate result of the misrepresentation by Anna of the genuineness of Roland's signatures.
The standard of review of an appellate court in suits of an equitable nature has been set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) in which the supreme court cut through the confusion that had previously existed as to the appellate review of suits of an equitable nature. The court construed Rule 73.01 to mean that "the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless...
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