Siegel v. Ellis
| Decision Date | 12 March 1956 |
| Docket Number | No. 1,No. 44527,44527,1 |
| Citation | 288 S.W.2d 932 |
| Parties | Ruby H. SIEGEL, Respondent, v. Bessie ELLIS, Executrix of the Estate of Mike Siegel, Deceased, Appellant |
| Court | Missouri Supreme Court |
Max Sigoloff, St. Louis, for appellant.
Howard Elliott, Fred Armstrong, Edward D. Weakley, St. Louis, for respondent.
This action was instituted in the Probate Court of St. Louis County, where respondent-plaintiff's demand, based upon an account stated, was allowed against the estate of Mike Siegel, deceased, in the sum of $9,876, from which the executrix of Mike Siegel's estate appealed to the Circuit Court. Upon trial to a jury in that court, plaintiff had a verdict for the aforesaid principal sum of $9,876, together with interest thereon at six per cent per annum from June 21, 1951, in the sum of $1,637.77. Following an unsuccessful motion for new trial, the executrix has appealed from the judgment rendered in accordance with the verdict of the jury. She here contends: (1) that the demand filed in the probate court is insufficient in law to support a valid judgment; (2) that respondent's evidence does not support the demand upon which he recovered; (3) that respondent's submission instruction was prejudicially erroneous; and (4) that the court erred in the admission and refusal of certain testimony.
The record consists of more than 500 typewritten legal size pages. A painstaking reading of it shows it to be replete with testimony relating to collateral matters introduced for the purpose of discrediting the witnesses of the respective parties, and appellant has here, in a voluminous brief, again presented and argued some of those matters, apparently on the theory that we should weight the evidence and determine the facts as though we were considering an equity or a jury-waived law case. But we do not weight the evidence in jury-tried cases. It is only when there is a complete absence of probative facts in such cases to support the verdict that appellate courts are authorized to interfere. 3 Mo.Dig.Pt. 2, Appeal and Error, k1003 and 1001(1). Consequently, we must state and review the evidence from the viewpoint most favorable to respondent, Machens v. Machens, Mo., 263 S.W.2d 724, 734, and disregard defendant's evidence except to the extent it aids plaintiff's case, 3 Mo.Dig.Pt. 1, Appeal and Error k927(7).
After spending some ten weeks in other hospitals, Mike Siegel entered the Jewish Hospital in the City of St. Louis on February 10, 1950, where, on the 7th day of June, 1950, he died at the age of 76 years, survived by three sons, respondent Ruby, Sol and Louis, and a daughter, Bessie Ellis, all of whom were adults, Ruby being past fifty, Sol next in age, followed in order by Bessie and Louis, the latter being then in his 'forties'. Mike Siegel's wife had predeceased him in February, 1950. His will, dated March 28, 1946, and naming Bessie Ellis as executrix, was probated on June 29, 1950. Its provisions shed no light upon the questions here presented for review.
It is admitted that although Mike Siegel was physically weak and infirm during his stay in the Jewish Hospital, yet he was at all times until his death possessed of full mental vigor. He was an illiterate man, limited to the ability to inscribe his signature and to record and compute simple numerals. But, for twenty-five years prior to his death, he had successfully operated an unincorporate auto supply store at 4844 Easton Avenue in the City of St. Louis under the name of U. S. Auto Supply Company.
At trial time, respondent was and had been for forty-one years an employee of Missouri Pacific Railroad Company. For the past thirty-eight years he had been 'chief statistician', which, as we understand, constituted him the supervising timekeeper of some 1,250 employees. He was a trusted employee and as such was permitted to go to and leave his place of employment as he desired, subject only to the requirement that he discharge the duties of his employement. Sol had operated an automobile battery business in the basement of the U.S. Auto Supply Company for many years. Bessie does not appear to have been connected with the business in any manner and did not testify. Louis was associated with his father in the conduct of the Auto Supply Store. A dispute exists as to his interest in that business; Louis contending that he had been a partner with his father in that business since 1940. Respondent and Sol, however, say he was a partner 'for income tax purposes only'. Admittedly, he was never permitted to sign checks and there is little, if any, evidence that he regularly shared in any stated or agreed percentage of the profits.
The controversy here presented is principally between respondent on the one side and Louis on the other. Sol's testimony strongly corroborates the testimony of respondent although it is admitted by all of the parties that respondent and Sol were and had been 'bad friends' for twenty-five years. It further appears from the evidence that prior of the filing of the demand involved in this case and prior to any knowledge on the part of Sol, Bessie or Louis that respondent would present such a demand, Bessie, as executrix, had instituted an action for discovery of assets against respondent, Sol and Louis, which had been settled by an agreed distribution of the assets in question. The extended arguments made by counsel to the court concerning the admissibility of all or any part of the facts out of which that incident arose, the rulings of the court upon the admissibility of such facts and certain of the details thereof, and the conflicting testimony to the extent admitted by the court require that we briefly state the incident as shown by the testimony admitted: On March 13, 1950, a check signed by Mike Siegel and drawn on U. S. Auto Supply Company payable to respondent and Louis in the sum of $18,000 was deposited in a bank to the joint credit of respondent and Louis. The version of respondent and Sol as to the issuance and purpose of this check is: that in the presence of his three sons, Mike Siegel suggested that they withdraw all of the funds of the U. S. Auto Supply Company from the bank (there was about $21,000 on deposit at that time) and that the money and all of the assets (consisting of bonds, etc.) in Mike Siegel's safety deposit box be divided equally among the children; that respondent suggested the father leave the money in the bank for the payment of bills that might arise; that the father said he would leave a sufficient amount for that purpose, $3,000, and thereupon signed a check, which had been filled out by Louis, payable to respondent and Louis, in the sum of $18,000, which, with the full consent of all three of the sons, was deposited in the joint names of respondent and Louis; that thereafter the contents of the safety deposit box were withdrawn, but neither the cash nor the contents of the safety deposit box were divided among the children until a citation for concealment of assets had been filed by the executrix against the three brothers, which case was amicably settled by a division satisfactory to all of the parties. Louis' version was that he (Louis) and respondent surreptitiously obtained a check that had been signed in blank by their father and thereafter, without the knowledge or consent of their father, filled it in payable to themselves in the sum of $18,000, and that the three brothers, for the ostensible purpose of keeping the money to pay such bills as might accrue against their father, thereafter caused said check to be deposited to the credit of respondent and Louis for the benefit of the three brothers.
We now state the testimony adduced in support of the demand involved in this case. In the early part of 1945, due to the exigencies of war, there was an extreme shortage of and demand for household and electrical appliances and Mike Siegel was anxious to get into that business. He, however, had no connection with any of the suppliers and was unable to make any. On the other hand, respondent had gone out of his way to secure and, due to his railroad experience and connections, had been successful in securing railroad transportation facilities (also very difficult of obtainment) for persons in the business of supplying electrical appliances to retailers. At that time the suppliers of electrical appliances had a custom of granting to (or withholding from) established retailers exclusive franchises to sell their products within given areas. Such franchises were also difficult to obtain. Respondent's aforesaid activities had made him many friends among such suppliers and he was confident he could acquire the necessary franchises, and he so advised his father. Respondent said to his father, however, that he did not have adequate funds or credit to handle such matters and that if the father would handle this phase of the business through the U. S. Auto Supply Company and divide the profits on a 'fifty-fifty basis', respondent would make money for both of them, to which his father 'heartily agreed'. At the same time (early part of 1945) respondent's mother was sorely distressed because she and Mike Siegel owned no home and she lived in fear of eviction from rented premises. Respondent proposed to his father that our of profits from the contemplated enterprise they jointly would buy a duplex residence property in which both his parents and respondent and his family could live. Mike Siegel thought the proposal a good idea and agreed to it. They further agreed that the father would keep all of the money in the account of U. S. Auto Supply Company in the Mercantile-Commerce Trust Company and that the father would also keep the books, which he did in a 'little black book', kept under lock and key separate from the automotive supply business.
When the parties had agreed in the manner aforesaid, respon...
To continue reading
Request your trial
-
Bennett v. Adams
...outright, but should be reversed and the case remanded for a new trial. It is so ordered. STONE and McDOWELL, JJ., concur. 1 Siegel v. Ellis, Mo., 288 S.W.2d 932(4); In re Thomason's Estate, 346 Mo. 911, 144 S.W.2d 79(4); Whitworth v. Monahan's Estate, Mo.App., 111 S.W.2d 931(3).2 Murphy v.......
-
Padgett v. Brezner
...Life Insurance Company, Mo.App., 343 S.W.2d 649, 651; Wilson v. Motors Insurance Corporation, Mo.App., 349 S.W.2d 250, 254; Siegel v. Ellis, Mo., 288 S.W.2d 932, 940; Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687, 689; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721, 724(2).......
-
Revis v. Bassman
...would be the minute details of the pending Illinois legislation, which could confuse or distract the jury. See e.g., Siegel v. Ellis, 288 S.W.2d 932, 940 (Mo. 1956) (holding there is no abuse of discretion where a trial court limited cross-examination to "the essentials" of a collateral mat......
-
Robbins v. Robbins, 47043
...that the verdict is against the weight of the evidence presents a matter which is essentially for the trial court. Siegel v. Ellis, Mo., 288 S.W.2d 932, 934; Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 590; Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570, 572; Nelson......