State ex rel. Smith v. Bland

• Decision Date: 05 March 1945
• Docket Number: 39248
• Parties: State of Missouri at the Relation of G. Blanchard Smith, Relator, v. Ewing C. Bland, Nick T. Cave, and Samuel A. Dew, Judges of the Kansas City Court of Appeals, Helen Gertrude Smith and the Equitable Life Assurance Society of the United States, a Corporation
• Court: Missouri Supreme Court

186 S.W.2d 443

353 Mo. 1073

State of Missouri at the Relation of G. Blanchard Smith, Relator, v. Ewing C. Bland, Nick T. Cave, and Samuel A. Dew, Judges of the Kansas City Court of Appeals, Helen Gertrude Smith and the Equitable Life Assurance Society of the United States, a Corporation

No. 39248

Supreme Court of Missouri

March 5, 1945

Rehearing Denied or Motion to Transfer to Banc Overruled April 2, 1945.

Original Proceeding in Certiorari.

RECORD OF COURT OF APPEALS QUASHED.

Record of Court of Appeals quashed.

Walter A. Raymond for relator.

(1) Respondent judges erred in holding that the burden was on relator to prove Mrs. Smith obtained possession of the policies, which she was claiming as a gift from relator wrongfully and illegally, and, in so ruling, brought their opinion into direct conflict with controlling decisions of this court holding that "the burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of the gift." Spencer v Barlow, 319 Mo. 835, 5 S.W.2d 28; Wilkerson v Wann, 16 S.W.2d 72; Horn v. Owens, 171 S.W.2d 585. (2) Respondent judges erred in holding physical possession of the policies by Mrs. Smith relieved her of the burden of proving delivery of the policies she was claiming by gift, and, in so ruling, respondent judges brought their opinion into direct conflict with controlling decisions of this court holding such burden remains on the donee even though in possession of the subject of the alleged gift. Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28; Roethemeier v. Veith, 334 Mo. 1030, 69 S.W.2d 930; Tygard v. Falor, 163 Mo. 234, 63 S.W. 672. (3) Respondent judges erred in holding that actual possession of the policies relieved Mrs. Smith of the burden of proving the alleged gift under which she claimed by clear and convincing proof, and, in so ruling, respondent judges brought this opinion into direct conflict with controlling decisions of this court. Jeude v. Eiben, 338 Mo. 373, 89 S.W.2d 960; In re Franz's Estate, 344 Mo. 510, 127 S.W.2d 401. (4) Respondent judges erred in holding the agency of relator's sister for him was established by Mrs. Smith's testimony as to what said sister had said about her authority to deliver the policies of insurance, and in so ruling the opinion herein was brought into conflict with controlling decisions of this court. Mechanics' American Natl. Bank of St. Louis v. Rowell, 182 S.W. 989; State ex rel. R.E. Funsten Co. v. Becker, 1 S.W.2d 103; Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78; Cartall v. St. Louis Union Trust Co., 348 Mo. 372, 153 S.W.2d 370.

Glen V. Graf and Roger S. Miller for respondents.

(1) Respondent judges did not err or fail to follow the last controlling decision of the Supreme Court in any of its holdings in the case at bar with respect to the burden of proof. Spencer v. Barlow, 5 S.W.2d 28; Wilkerson v. Wann, 16 S.W.2d 72; Benton v. Smith, 171 S.W.2d 767. (2) The respondent judges committed no error and did not bring their opinion in conflict with the last decision of the Supreme Court in holding that the transfer of the res from the relator to the respondent Smith complied with all the requirements of our law with respect to equitable transfers. Harvey v. Long, 260 Mo. 374; Rumsey v. Otis, 133 Mo. 85; Gillespie v. Gillespie, 289 S.W. 579; Mechanics Natl. Bank v. Rowell, 182 S.W. 989; Hamilton v. Steininger, 162 S.W.2d 59; Cartall v. St. Louis Union Trust Co., 348 Mo. 372; Rough v. Rough, 195 S.W. 501.

Henry I. Eager and Michael, Blackmar, Newkirk, Eager & Swanson for respondent The Equitable Life Assurance Society of the United States.

If, the opinion of the Kansas City Court of Appeals should be quashed, nothing in the opinion of this court should deny to this respondent the right to insist that the relator should be required, as an incident to any change of beneficiary (or other election requiring endorsement), to surrender the original policy to the insurer for suitable endorsement, as required by its terms; and any orders or judgments made in such an event should provide for the delivery to him of the original policy for that purpose, and the individual respondent should be enjoined from making further claims.

OPINION

Ellison, P.J.

Certiorari to the Judges of the Kansas City Court of Appeals in G. Blanchard Smith v. Helen Gertrude Smith et al., reported in 181 S.W.2d 793. Reference is made to that opinion for a fuller statement of the facts.

The relator's suit in the circuit court was for a declaratory judgment, to determine his rights and the rights of his wife and the defendant insurance companies in three insurance policies on his life in favor of his wife. The relator and his wife were separated but not divorced. The wife claimed the three policies as an executed gift from him. He contended there had been no gift, and that the evidence was insufficient to establish it. He and his wife had previously made a property settlement whereby he agreed to pay her a stipulated amount each month, but later, by another contract, this amount was reduced. Following that, the wife became ill and went to a hospital. There was a doctor's bill to pay. She testified the relator promised to send her the three policies after "she was settled" -- she was going to visit her sister in Ohio, and did go.

The wife testified further that while she was in Ohio she received a letter from relator's sister stating that relator had left the three policies with the sister to mail to her (the wife). This was about the time the relator had gone on a trip to California. The wife did not answer the sister's letter promptly, whereupon the sister's husband wrote her asking if the policies should be sent to her. Neither of these letters was introduced in evidence, but the wife's testimony concerning them went in without objection. The wife did not testify that she answered her brother-in-law, but at any rate she said the policies did come to her in Ohio by registered mail, with the Kansas City home address marked on it as a return address, but without any accompanying letter in the envelope. Thus the wife got possession of the policies.

Relator's sister and brother-in-law did not testify, although they came to live at the relator's home after the time when the wife claimed relator had given her the policies -- thus warranting an inference that they were friendly to the relator and would have denied the wife's testimony if it was false. Also the wife testified the relator kept the policies in his bank box the last she knew anything about it -- thereby indicating it would have been necessary for him to authorize their removal from the bank box for mailing to her.

Relator testified he did not know anything about the mailing of the policies to the wife until he wrote the insurance companies, or one of them, about changing the beneficiary therein, and was informed he would have to surrender the policies or procure an assignment from his wife. The companies refused to let the wife pay premiums on the policies unless she got an assignment of them. The relator declared he kept the policies in his desk at home -- thus warranting an inference that the policies were accessible to his sister and brother-in-law without his knowledge or consent. He further denied he had authorized the sending of the policies to the wife and alleged she got them wrongfully and illegally. The respondent judges treated the case as in equity, and affirmed the decree of the circuit court upholding the wife's title to the policies as executed gifts.

The relator makes four assignments of conflict with our decisions. The first is that respondents' opinion erred in holding the burden was on relator to prove the wife obtained possession of the three policies, which she claimed as a gift, wrongfully and illegally. It is contended this holding conflicts with three decisions of this court. ^[1] Of these, the Spencer case held "the burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of the gift." The Wilkerson case followed the same rule, applying it to gifts of realty as well as personalty; but it conceded that the burden of evidence would be on the plaintiff to show fraud, if he had alleged it in his petition. Both cases discussed the distinction between the burden of proof throughout a case and the burden of evidence, or going forward. The Horn case applied the burden of proof rule to gifts of personalty.

The brief for respondents, filed by the wife's counsel below, concedes the foregoing rules, but argues that respondents' opinion only means the relator carried the burden of evidence in the trial court. So we must turn to that part of the opinion, found in 181 S.W.2d l.c. 797(6), where it is said (italics ours):

"It must be kept in mind that the basis of plaintiff's petition is the charge 'that said contracts of insurance . . . were wrongfully and illegally removed and taken from the plaintiff's possession by the defendant, Helen Gertrude Smith, without his permission; that at no time did he give, assign or turn over to her said contracts of insurance or any rights therein, but that she did, without his consent or approval, take said contracts and withhold the possession of said contracts from him. . . .' This is a charge which the plaintiff must prove and he did testify to that effect, but the wife's evidence is to the contrary and we think it is corroborated and supported by all the circumstances and facts introduced in evidence, some of which are not disputed. . . ."

It will be observed the quoted excerpt stresses the fact that relator's petition pleaded the insurance policies were wrongfully removed from his possession by the defendant without his permission; and that he...