State ex rel. Dunklin County v. McKay

• Decision Date: 09 July 1930
• Docket Number: No. 29519.,29519.
• Parties: THE STATE at Relation and to Use of DUNKLIN COUNTY v. JOHN T. McKAY, T. PAUL KING, R.A. PELTS, Executor of Estate of W.R. ROBERTS, W.M. LLOYD, W.A. SOUTHERN, J.W. KARSTEN, MISSOURI ANN BAILEY, Executrix of Estate of John W. Bailey, and CLYDE WALLACE PRICE, Administratrix of Estate of W. II. Wallace, Appellants.
• Court: Missouri Supreme Court

30 S.W.2d 83

THE STATE at Relation and to Use of DUNKLIN COUNTY v. JOHN T. McKAY, T. PAUL KING, R.A. PELTS, Executor of Estate of W.R. ROBERTS, W.M. LLOYD, W.A. SOUTHERN, J.W. KARSTEN, MISSOURI ANN BAILEY, Executrix of Estate of John W. Bailey, and CLYDE WALLACE PRICE, Administratrix of Estate of W. II. Wallace, Appellants.

No. 29519.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.

REVERSED AND REMANDED.

Langdon R. Jones, Orville Zimmerman, Ely & Ely and John T. McKay for appellants.

(1) The court erred in refusing to require plaintiff to elect upon which count of its petition it would stand, and in giving plaintiff's requested instructions numbered 1, 2, 3, 4, 4a and 5. (a) The two counts of the petition were hopelessly inconsistent, proof of one totally disproved the other, and it was error to give the jury a roving commission to determine which count plaintiff was entitled to recover upon. Crews v. Wilson, 281 S.W. 46; Behen v. Transit Co., 186 Mo. 439; Southworth Co. v. Lamb, 82 Mo. 247; Roberts v. Ry. Co., 43 Mo. App. 289; Marx v. Marx, 89 Mo. App. 455; Enterprise Soap Works v. Sayers, 51 Mo. App. 314. (b) Instruction 2 contains the additional vice of being argumentative, and is in no sense a declaration of law, but purports to set out the claims and contentions of the plaintiff under the pleadings, and is not referable to any evidence in the cause but merely an argument by the court of plaintiff's contentions under the pleadings. Markowitz v. Markowitz, 290 S.W. 122; Bank v. Dowler, 163 Mo. App. 68. (c) Instruction 3 contained the additional vice of submitting to the jury the privilege of finding that the alterations and changes in the bond were made before the signing of the same, by the defendant sureties, without any evidence being offered in the case upon which to predicate such finding. Said instruction further permitted the jury to find that the bond sued on in its altered form was accepted by the county court without any evidence whatsoever upon which to base such a finding. Chapman v. Creosoting Co., 286 S.W. 840; Campbell v. Myers, 287 S.W. 846; Stahlberg v. Brandes, 299 S.W. 838. (2) The court erred in refusing defendants' requested instructions numbered 11D, 13D, 16D and 19D, offered at the close of the whole case, and in the nature of demurrers to the evidence, and in refusing defendants' requested Instruction 23D. (a) The court erred in admitting in evidence the bond sued on without any evidence of the time when the alterations appearing in the face of the bond, and shown to be in a different character of writing from the body of the instrument and changing materially the terms of the instrument, were made. Collison v. Norman, 191 S.W. 62; Cox v. Migneri & Co., 126 Mo. App. 682; Lumber Company v. Tie Co., 89 Mo. App. 560; Patterson v. Fagan, 38 Mo. 84; State ex rel. v. Chick, 146 Mo. 657; Powell v. Manks, 146 Mo. 643; 1 R.C.L. 969; 2 C.J. 1189; State v. McConigle, 101 Mo. 365. (b) Even assuming the bond was admissible in evidence in its altered form, on the theory that a presumption might be indulged that the alterations and changes were made prior to the signing of same by defendant sureties, yet such presumption faded upon the proof offered in the cause as to when the alterations and changes were in fact made, and there was no substantial evidence in the cause upon which to submit Count One to the jury. Guthrie v. Holmes, 198 S.W. 858, 272 Mo. 233; Tetwiler v. Railroad, 242 Mo. 194; Mockowik v. Railroad, 196 Mo. 571; Sowders v. Railroad, 127 Mo. App. 124; Advertising Co. v. Publishing Co., 146 Mo. App. 103; Schaub v. Railroad, 133 Mo. App. 450. (3) The court erred in refusing defendants' requested instructions numbered 36D and 38D, and in giving plaintiff's Instruction 7, casting the burden of proof upon the defendants in this case. Meredith v. Brock, 17 S.W. (2d) 352; State ex rel. v. Chick, 146 Mo. 657; Powell v. Banks, 146 Mo. 643; Kelly v. Thuey, 143 Mo. 433; First National Bank v. Ford, 31 A.L.R. 1441; Roelter v. Rothernel, 251 S.W. 428; Conkling v. Olmstead, 63 Ill. App. 649; Eggman v. Nutter, 155 Ill. App. 390; Yost v. Harvester Works. 41 Ill. App. 556; Tilton v. Trapp, 183 Ill. App. 530; Simpson v. Davis, 119 Mass. 269; Stevens v. Odlin, 109 Me. 417; Faust v. McRae, 105 Mc. 140; Von Eherenkrook v. Webber, 100 Mich. 314; Siefke v. Siefke, 22 N.Y. Supp. 546; Brown v. Phelon, 2 Swan. (Tenn.) 629. (4) The court erred in refusing to give Instruction 25D requested by defendant Missouri Ann Bailey, executrix of Estate of J.W. Bailey, and in giving Instruction 9. Authorities cited under Points I, VII, VIII. (5) The court erred in refusing to give defendants' requested instructions numbered 28D, 29D, 30D, 31D, 32D, 33D, 34D, 35D and 37D. Warehouse & Storage Co. v. Tooney, 181 Mo. App. 70; Miller v. Railroads Co., 247 S.W. 231; Marshall v. Brown, 230 S.W. 348. (6) The court erred in refusing to give Instructions 42D and 43D, upon the request of the defendant Pelts, executor of the estate of W.R. Roberts. Gate City National Bank v. Bunton, 296 S.W. 375. It was not negligence or carelessness for Roberts to rely upon the statement of the cashier. They were old acquaintances and had long been associated together. First National Bank v. Hall, 108 S.W. 634.

Hal H. McHaney, Ward & Reeves and Jas. V. Billings for respondent.

(1) Plaintiff was not required to elect upon which count in its petition it would go to the jury. (a) There was but one cause of action, viz., breach of county's depository bond and the amount due thereunder. This cause of action could be stated alternatively, in two counts, plaintiff declaring its belief of one alternative or the other, and its ignorance of whether it be the one or the other. The writing sued upon may be declared upon in different counts of the petition for the purpose of varying the form of statement so as to meet any possible state of the proof. Sec. 1254, R.S. 1919; Brownwell v. Railroad, 47 Mo. 243; Brinkman v. Hunter, 73 Mo. 178; Waechter v. Railroad, 113 Mo. App. 278; Wade v. Douglass, 161 Mo. App. 242; Myers v. Adler, 188 Mo. App. 617; Hendricks v. Calloway, 211 Mo. 536; Sims v. Spellman, 232 S.W. 1073, 209 Mo. App. 186; Feil v. Bank, 269 S.W. 939; Schroeder v. Turpin, 253 Mo. 270; Blood v. Sovereign Camp, 140 Mo. App. 526. (b) A case wherein there is but one cause of action and one satisfaction sought, but pleaded in different ways in different counts to meet the exigency of the proof or where the statements would otherwise have been inconsistent except for being pleaded alternatively, as in the case at bar (and the ruling of the courts thereon), must not be confounded with those cases where two causes of action are joined in the same suit, or where there is one cause of action based upon alternative statements pleaded in one count, or one cause of action pleaded in separate counts but not alternatively stated in accordance with Sec. 1254, R.S. 1919, or where there are two statements of one cause of action but no proof to substantiate one of them. The latter cases and the ruling of the court thereon constitute no authority for the procedure in the case at bar. Jordan v. Transit Co., 202 Mo. 425. (2) Instructions for plaintiff correctly declare the law applicable to this case. (a) Instruction 1 aptly advised the jury that there was but one cause of action and if the finding was for the plaintiff it could only recover on one count. There being testimony from which the jury might find for the plaintiff on either count, it was proper to submit the case to the jury on both theories. Brinkman v. Hunter, 73 Mo. 179; Wade v. Douglass, 161 Mo. App. 357; Waechter v. Railroad, 113 Mo. App. 270. (b) By Instruction 2 the court does not leave it to the jury to determine "from the pleadings" what the issues are, but clearly tells the jury what the issues on each count are; and this form of instruction meets the approval of our courts. Price v. Railroad, 220 Mo. 462; Ledbetter v. Kirksville, 167 Mo. App. 197. (c) Instruction 3 is not subject to appellants' criticism that there was no proof that the alteration was made before the bond was signed, nor that it was not accepted by the county court. Matthews v. Coalter, 9 Mo. 711; McCormick v. Fitzmorris, 39 Mo. 34; Holton v. Kemp. 81 Mo. 665. (d) Where the changes are not such as to excite suspicion, the presumption is that the changes in question were made either before or contemporaneous with signing the instrument and this presumption is available for the benefit of the plaintiff throughout the trial of the case. Paramore v. Lindsey, 63 Mo. 63; City of Carterville ex rel. Ruggles v. Luscombe, 165 Mo. App. 518; Matthews v. Coalter, 9 Mo. 705; Holton v. Kemp, 81 Mo. 665; Burnett v. McCluey, 78 Mo. 687; Grimes v. Whitesides, 65 Mo. App. 3; Little v. Herndon, 10 Wall. 26, 19 L. Ed. 878; Hanrick v. Patrick, 119 U.S. 156; Elzea v. Dunn (Mo.), 249 S.W. 933; Bond v. Railroad, 288 S.W. 782. (e) Some authorities hold that this presumption is not overcome by the changes being suspicious, but that such suspicious changes are proof from which the triers of fact may (without additional evidence) find against this presumption. Grimes v. Whitesides, 65 Mo. App. 1; Noah v. Ins. Co., 69 Mo. App. 336; Sweitzer v. Banking Co., 76 Mo. App. 6; Bond v. Railroad Co., 288 S.W. 782. (f) Other cases hold that if the alteration on the face of the bond is suspicious (a fact which is to be first determined by the court trying the case) then there is no presumption either way, and the question as to the time when, the person by whom and the intent with which the alteration was made are matters of fact to be found by the jury. Neffert v. Lawson, 233 S.W. 31. (g) But under the rule set out above the trial court having held that the interlineations on the bond in question were not suspicious and the changes not being suspicious as a matter of fact, it then became a...