Spencer v. Barlow

• Decision Date: 09 April 1928
• Docket Number: No. 26293.,26293.
• Citation: 5 S.W.2d 28
• Court: Missouri Supreme Court
• Parties: KARL P. SPENCER, Administrator <I>Pendente Lite De Bonis Non</I> of Estate of CAROLINE J. PEPER, v. ESTELLE PEPER BUSHMAN BARLOW, Appellant.

5 S.W.2d 28

KARL P. SPENCER, Administrator Pendente Lite De Bonis Non of Estate of CAROLINE J. PEPER, v. ESTELLE PEPER BUSHMAN BARLOW, Appellant.

No. 26293.

Supreme Court of Missouri, Division Two.

April 9, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. William A. Taylor, Judge.

AFFIRMED AND REMANDED.

Harry H. Haeussler, Foristel, Mudd, Blair & Habenicht and Chas. J. Macauley for appellant.

(1) The circuit court committed reversible error in granting plaintiff a new trial on the ground that it erred in refusing to give and read to the jury plaintiff's Instruction J. (a) Said Instruction J was too broad. It placed on defendant the burden of proving that she received as a gift from her mother all of the property mentioned in the pleadings and the evidence, which included the gold bracelet, the platinum ring, and the baby ring mentioned in the interrogatories and evidence, when defendant denied, and plaintiff failed to prove, that defendant did receive these three pieces of jewelry from her mother as a gift or otherwise. (b) By said instruction plaintiff asked the court to place on defendant the burden of proving that she received as a gift from her mother a pair of diamond earrings, and a brooch set with fourteen diamonds, when the evidence clearly and conclusively showed that her mother never had a pair of diamond earrings and a brooch set with fourteen diamonds, and that defendant never did receive any such jewelry from her mother as a gift. (c) It is not error for the court to refuse to give an instruction on the burden of proof, even though the evidence justified the giving of one. Fletcher v. Milburn Mfg. Co., 35 Mo. App. 321. (d) Said Instruction J assumes that defendant claimed that her mother gave to her as a gift all of the property mentioned in the pleadings and the evidence, when defendant made no such claim, but denied that her mother ever owned the platinum and baby rings produced at the trial. An instruction which assumes the existence of a controverted question of fact is an erroneous instruction and should not be given. Christian v. McDonnell, 127 Mo. App. 631. (2) Plaintiff's interrogatories and defendant's answers thereto, which answers were in the nature of a general denial, constituted the pleadings in this case. Newel v. Edom, 242 S.W. 701. (a) As defendant's answers to the plaintiff's interrogatories were in the nature of a general denial, and denied the charges made in the affidavit and interrogatories, the burden of proof rested on plaintiff, who, from the nature of the pleadings, had the affirmative of the issue. (b) The burden of proof remained throughout the trial where the pleadings placed it in the first instance, i.e., on the party (plaintiff) asserting the affirmative of the proposition to be sustained, though the burden of the evidence may shift from side to side in the case as that given by the parties appears to establish, or rebut, a prima-facie showing. O'Shea v. Lehr, 182 Mo. App. 676; Berger v. Storage Co., 136 Mo. 42; Long v. Long, 44 Mo. App. 147; Marshall Livery Co. v. McKelvey, 55 Mo. App. 242; Derrell v. Sparks, 142 Mo. 464; McCarthy v. State Ins. Co., 45 Mo. App. 373. (c) The proposition to be sustained in the instant case is, as set forth in plaintiff's preliminary affidavit and his interrogatories, that the property mentioned therein belonged to Caroline J. Peper at the time of her death, and that that property was concealed and wrongfully withheld by defendant. (d) By offering in evidence the inventory and appraisement, in which the property plaintiff seeks to recover was listed, he disproved the charge that defendant was concealing that property. By calling to the witness stand and interrogating the witnesses Rubenstein and Harper he disproved his charge that Caroline J. Peper ever had a pair of diamond earrings or a diamond brooch set with fourteen diamonds. By his witness Bushman he disproved his charge that Caroline J. Peper ever owned the platinum ring or baby ring mentioned in the interrogatories. And there was no evidence offered by him to show she owned at the time of her death a certificate of stock No. 44 calling for 789¼ shares of the capital stock of the Christian Peper Tobacco Company, or that she owned at the time of her death a pair of gold earrings and brooch set with coral cameo. (3) The certificate of stock was on the back thereof duly and regularly assigned to appellant by Caroline J. Peper, who signed her name to that assignment on the 8th day of March, 1915. Charles Peper, her cousin, witnessed her signature thereto. It was by the mother delivered to her daughter, appellant, on that day, and retained by appellant ever since. Since the assignment was regularly and duly made on the back of the certificate, and the evidence shows delivery thereof by the mother to appellant, her daughter, the presumption necessarily follows that appellant was the owner of that certificate. Chandler v. Hedrick, 187 Mo. App. 664. One is presumed innocent of wrongdoing until some evidence is adduced of probative force and value to the contrary. Chandler v. Hedrick, 187 Mo. App. 664.

W.W. Henderson for respondent.

(1) The court, in the order sustaining the motion for new trial, should specify the reasons therefor. But, notwithstanding this fact, if the court's action in sustaining the motion for new trial can be upheld for any reason assigned in the motion, it should be done. Fair v. Preston, 157 Mo. App. 324; Lead Mining Co. v. Webster, 193 Mo. 351; Johnson v. Grayson, 230 Mo. 380. (2) The interrogatories and the answer to same constitute the pleadings in this cause. Newel v. Edom, 242 S.W. 701. Plaintiff's right of recovery must be determined from the pleadings, and not from the evidence and instructions. Zasemowich v. American Mfg. Co., 213 S.W. 803; Christian v. Insurance Co., 143 Mo. 469; Black v. St. Ry. Co., 217 Mo. 683; Davidson v. Transit Co., 211 Mo. 361. (3) It was palpable error for the trial court to permit defendant, under her answer, to introduce evidence that she had Certificate No. 44 for 789¼ shares of Christian Peper Tobacco Company stock in her possession many years prior to her mother's death; that her mother did own them, and to avoid the effect of this set up affirmatively that her mother had given the stock to her many years before. Said interrogatory and answer could not and did not raise the issue upon which she defended her position, to-wit, that she did have possession, but that she held said property and claimed ownership by reason of a gift from her mother. The court should not have admitted any evidence of gift and should have sustained plaintiff's motion for judgment on the pleadings. (4) The trial court committed error in giving defendant's Instructions 1, 2, 3 and 4. All of said instructions are broader than the pleadings in the case. Riley v. Independence, 258 Mo. 671; Scrivner v. Railroad, 260 Mo. 421; Boles v. Dunham, 208 S.W. 480. Instructions must not be broader than the pleadings regardless of how broad the evidence. Gunn v. Hemphill Lumber Co., 218 S.W. 978; Parker v. Drake, 220 S.W. 1000; Stumpf v. U. Rys. Co., 227 S.W. 852; Lorton v. Trail, 216 S.W. 54; Sallee v. McMurry, 113 Mo. App. 253; Walkeen Lewis Co. v. Johnston, 111 S.W. 639. (5) Instruction 2, for defendant, is clearly a comment on the evidence and deprives plaintiff of the right to have the jury consider a very vital fact in this case, namely, that the certificate of stock in question was never transferred on the books of the company to the defendant. This fact was very persuasive to rebut any presumption of gift. Instructions which state correct propositions of law in themselves, but which divide the evidence into parts so that the jury may be led not to consider the evidence as a whole are a comment on the evidence and erroneous. Imboden v. Trust Co., 111 Mo. App. 242; Moody v. Cowherd, 199 S.W. 586; Andrew v. Linebaugh, 260 Mo. 663. (6) Where an alleged gift inter vivos is asserted (in the instant case in the evidence, but not in the pleadings) it is a plea of confession and avoidance. It admits the charge that defendant has possession of the property, but attempts to justify possession by the assertion of an alleged gift, which is an affirmative defense and must be both pleaded and proved by the party asserting same. Tygard v. Falor, 163 Mo. 234; Newell v. Edom, 242 S.W. 701; Jones v. Falls, 101 Mo. App. 536; Dorrell v. Sparks, 142 Mo. App. 460; Hunter v. Wabash Railroad, 149 Mo. App. 243. (7) From the above-cited authorities it is clear that the court committed palpable error in refusing to give Instruction J offered by plaintiff, and committed error in giving of his own motion the instruction to the same effect.

DAVIS, C.

This is a proceeding instituted in the Probate Court of the City of St. Louis by the administrator pendente lite de bonis non of the estate of Caroline J. Peper, deceased, to discover assets in the hands of defendant belonging to said estate. The administrator began the proceeding by filing an affidavit in compliance with Section 62, Revised Statutes 1919, charging the wrongful withholding of assets of said estate, upon which the probate court issued a citation for defendant to appear for examination. Subsequent to her return to the citation, denying that she was wrongfully withholding assets, the administrator called defendant to the stand, examining her at length. Thereupon the administrator, following the statutory practice in such proceedings, filed interrogatories which defendant answered. Upon a hearing had, the probate court sustained the citation as to Certificate No. 44 for 789 1/25 shares of stock of the Christian Peper Tobacco Company, ordering defendant to deliver same forthwith to the administrator pendente lite, but dismissing the citation as to the jewelry inventoried and claimed by defendant. On an appeal by defendant to the circuit court, a trial de novo was had, the jury returning a verdict for de...