Silber v. Silber

• Decision Date: 05 March 1923
• Docket Number: No. 23172.,23172.
• Citation: 249 S.W. 390
• Parties: SILBER et al v. SILBER et al.
• Court: Missouri Supreme Court

249 S.W. 390

SILBER et al v. SILBER et al.

No. 23172.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Tj. Silber and another, minors, by Fred B. Mueller, their curator, against S. S. Silber and wife. Judgment for defendants, and plaintiffs appeal. Affirmed.

George Barnett, of St. Louis, for appellants.

Ernest C. Dodge, of St. Louis, for respondents.

SMALL, C.

I. Appeal from the circuit court of the county of St. Louis. Suit in equity by the plaintiff minors, as heirs of M. H. Sillier, their father, who departed this life February 13, 1920, to set aside two deeds made by him on the 6th day of February, 1920, to the defendants, S. S. Silber and Mettle C. Silber, his wife, said S. S. Silber being the brother of the deceased. The property involved is a parcel of land in said county.

The grounds alleged for setting aside said conveyances are that "said conveyance was based upon no consideration whatever"; that at the time said M. H. Silber signed said conveyances he was extremely ill with influenza and pneumonia and was thereby dispossessed of his mental faculties and incompetent to comprehend the nature of the instruments he signed, and was subject to the importunities and undue influence of the defendant S. S. Silber, and of other brothers and close relations of said M. H. Silber.

The answer admits the execution of the deeds, but denies all other allegations of the petition.

There was a judgment for defendants, from which plaintiffs appealed.

At the time of his death M. H. Silber was about 47 years of age, and for a number of years had been employed as a brakeman for the Missouri Pacific Railroad. He became ill with influenza on the 1st of February, 1920, and was taken to the Missouri Pacific Hospital in St. Louis February 2, 1920, where he remained until the 13th of February, on which day, at 8:25 p. m., he died.

Plaintiffs introduced In evidence the hospital record of the deceased, showing his condition each day from the time he entered the hospital until he died. This record was admitted as containing a correct history. Pneumonia appeared in one lung on February 4th. February 5th to 9th, inclusive, the hospital record was as follows:

"2/5/20: Patient is extremely nervous—moving about continuously. Irrational at times— temperature only moderately high—lower lobe of right lung definitely consolidated as shown by tubular breathing.

"2/6/20: Pneumonitis extending right middle lobe is involved. Crepitant rales over anterior and posterior.

"2/7/20: Patient delirious most of time, but answers when spoken to; extremely nervous; long doses of bromides have no effect.

"2/8/20: Condition about the same; temperature somewhat lower; slept considerable; meteorism noted.

"2/9/20: Seems improved this a. m. Slept considerable during the night."

The record on the 10th showed that the temperature was extremely high during the night, and "right lung involvement complete," and that the left lung was being affected, and the patient had a chill lasting 30 minutes, after which he perspired and was quieter, and the temperature was lower throughout the day.

"2/11/20: Patient slept none during the night; extremely nervous and delirious; temperature mounted to 104 during the night and continued. 250 cc of 10% glucose given by Dr. Ellis this a. m., followed by chill, after which patient became more quiet and slept. deft lower lobe now shows definite consolidation; this leaves only cleft upper lobe to function. 250 cc of 10% glucose given this p. m., by Dr. Ellis; no reaction.

"2/12/20: Patient gradually growing worse; pulse and respiration rate increasing; patient unconscious. 250 cc of 15% glucose given this a. m. and repeated in p. m.

"2/13/20: Growing weaker; pulse respiration rate increasing. 250 cc 15% solution C. P. glucose this a. m.; no reaction. Patient does not expectorate anything now; no breathing space left except in left upper. Dies at 8:25 p. m."

Dr. Ralph V. Ellis, whose deposition was taken by defendants, and was read by plaintiffs, testified, in substance:

"I am one of the physicians who was in charge of the Missouri Pacific Hospital. Had M. H. Silber under my supervision as a patient. He came the first part of February, when the epidemic of influenza was at its height. He arrived about 11 o'clock at night. The man was a pretty sick man, but, as far as his mental condition was concerned, he was perfectly normal. He had influenza, complicated with pneumonia. He had temperature and was put to bed that night, and kept in bed. "He was very sick that night. He seemed to be better the following day. But within some two or three or four days, I don't remember exactly, he began to show signs of pneumonia. He died about the 13th of February. The case was serious from the start, from the time pneumonia was diagnosed. We didn't give up hopes of his recovery, except during the last two or three days after he took sick. I did not see him transact any business. No other relatives called, that I have any knowledge of, except his two brothers there, I should judge four or five days after he took sick. I believe there were some inquiries by his children by telegram, but no one else called. I made the hospital record myself, and what that record shows is true."

Refreshing his recollection by the hospital record, Dr. Ellis continued:

"Yes; he was irrational on the 5th at times. On the 7th he was delirious most of the time, but he answered questions when he was spoken to—that is, questions concerning his condition. The hospital record would indicate that his illness was such that he was irrational at times on the 5th of February, and that his condition of being irrational and delirious was progressive, so that by the 7th he was in that condition most of the time."

Sister Notberga, whose deposition was also taken by defendants, but read by plaintiffs, testified:

She was a nurse at said hospital. She took charge of M. H. Silber the next morning after he came in, which was the 2d or 3d of February. From the very start that he came in the man was mentally unbalanced at times; but at times he was conscious up to the 9th day. From the 9th day he lost consciousness completely. Remembers the time S. S. Silber (one of defendants) visited him; does not recall date, because he was there too frequently; could not tell how many times. "Every time his brothers came, they talked, and we did not stay in the room and listen to the conversation. On one occasion his brother came and asked for a pen and ink off my desk, and I told him he could have it, but I did not know for what purpose he wanted it. That was S. S. Silber. His brother Fred Silber was not there that day, but he also visited him. S. S. Silber was in several times after that, but what they were talking about I don't know. The very day that M. H. Silber came he was unbalanced in his mind. He was a very high-strung man. For the first four or five days he was doing fairly well, until he developed pneumonia, and from the 9th day he lost consciousness completely. Up to the 9th day he was delirious at times, and at times you could keep up a good conversation with him. Another Sister also had charge of him. She is now in Texas; don't know where. He became worse when he developed pneumonia. He was irrational more of the time after that. The date he developed pneumonia is on the record. So far as his being irrational and out of his bead, he became much worse when he developed pneumonia. According to the record, he developed pneumonia first on February 6th, and that he was extremely nervous on February 5th, and was moving about continuously; that on February 7th he was delirious most of the time and out of his head at times on the 5th. From that time, so far as his mind was concerned, his condition progressively and continuously got worse until he became unconscious. On the 7th long doses of bromide had no effect, which means that quieting sedatives were not powerful enough to soothe him. He was that delirious and excited. Yes; he was nervous and medicine would not quiet him. Q. Bromides would not quiet him and would not soothe him; his delirium; that is true, isn't it? Yes; this hospital record is correct.

"Mr. Dodge: We admit that."

Dr. G. C. Eggers, whose qualification to testify as an expert was admitted by Mr. Dodge, attorney for defendants, testified for the plaintiffs, in answer to an expert question asked by the plaintiffs' counsel, which repeated the history of the illness of M. H. Silber, as shown by the hospital record: That on the 6th day of February, 1920, in his opinion, M. H. Silber was not mentally capable of comprehending the nature and consequences of a transaction involving the conveyance of real estate. On cross-examination he said:

"The record in this case, as put to me by Mr. Barnett, showed that the man was delirious from the 5th and remained delirious part of the time, most of the time, or at times, up until his death, and later he became unconscious. The entire history of the case shows a very profound toxemia. I don't think he would be able to answer intelligently any question with regard to a matter of business, not with that disease. I don't believe anybody who is delirious, that has toxemia sufficient to produce delirium, is capable of comprehending matters that are put to him. I believe there are exceptions to all rules. Don't know whether this is an exception or not."

Two deeds were then introduced by plaintiffs, each dated the 6th day of February, 1920, between M. H. Silber, party of the first part, and S. S. Silber and Mattie C. Silber, his wife, parties of the second part, conveying the property in question to said second parties. Each deed conveyed a part of the property. One recited a consideration of $1,700, and other good and valuable considerations, and one recited a consideration of $50, and other good and valuable considerations. Both...