State ex rel. State Social Security Comm. v. Butler, 38900.

• Decision Date: 03 July 1944
• Docket Number: No. 38900.,38900.
• Citation: 181 S.W.2d 768
• Parties: STATE OF MISSOURI EX REL. STATE SOCIAL SECURITY COMMISSION OF MISSOURI, Appellant, v. Estate of LUCINDA BUTLER, Deceased.
• Court: Missouri Supreme Court

181 S.W.2d 768

STATE OF MISSOURI EX REL. STATE SOCIAL SECURITY COMMISSION OF MISSOURI, Appellant, v. Estate of LUCINDA BUTLER, Deceased.

No. 38900.

Supreme Court of Missouri.

Division Two, July 3, 1944.

Appeal from Cass Circuit Court. — Hon. Leslie A. Bruce, Judge.

AFFIRMED ON THE MERITS AND REVERSED AS TO ASSESSMENT OF COSTS.

Elmore G. Crowe and J. Ralph Graves for appellant.

(1) A trial court in ruling upon the defendant's peremptory instruction or declaration of law in the nature of a demurrer at the close of all the evidence, must consider as true all the evidence favorable to the plaintiff, disregarding that evidence which is favorable to the defendant, where any conflict exists and also draw from the evidence all reasonable inferences of fact favorable to the plaintiff. Central State Savs. & Loan Assn. v. U.S. Fid. & Guar. Co., 334 Mo. 580, 66 S.W. (2d) 550; Fruit Supply Co. v. Chicago, B. & Q. Ry. Co., 119 S.W. (2d) 1010; First Natl. Bank v. Fulton, 28 S.W. (2d) 368; Lock v. Warden, 162 S.W. (2d) 642; Saucier v. Kremer, 297 Mo. 461, 249 S.W. 640; Grams v. Novinger, 231 S.W. 265; Hart v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W. (2d) 143; Goodyear Tire & Rubber Co. v. Ward, 197 Mo. App. 286, 195 S.W. 75; Jones v. Toledo-St. Louis & W.R. Co., 202 S.W. 433; Klika v. Albert Wenzlick R.E. Co., 150 S.W. (2d) 18. (2) Applying the tests as laid down by the aforementioned cases, the defendant's peremptory instruction or declaration of law in the nature of a demurrer at the close of all the evidence should have been refused as there was substantial evidence to support a judgment for the plaintiff. State v. Gregory, 339 Mo. 133, 96 S.W. (2d) 47; Jenkins & Reynolds Co. v. Alpena Portland Cement Co., 147 Fed. 641; James v. Kansas City Gas Co., 325 Mo. 1054, 30 S.W. (2d) 118; Hardin v. Ill. Central R. Co., 334 Mo. 1169, 70 S.W. (2d) 1075; Perrin v. Johnson, 124 S.W. (2d) 551; Phillips v. Alford, 90 S.W. (2d) 1060; 26 C.J. 1101; Noble v. Renner. 177 Iowa, 509, 159 N.W. 214; Locwer v. Harris, 57 Fed. 368, 6 C.C.A. 394; Brown v. Haniss, 74 N.J.L. 501, 68 Atl. 150; Pettigrew v. Chillis, 41 N.H. 95; Holt v. King, 54 W. Va. 44, 47 S.E. 362; 20 Cyc. 24. (3) The trial court erred in finding for the defendant, when, under the law and the evidence, the deceased, during her lifetime, was ineligible to receive old age assistance benefits and secured such benefits through fraud and misrepresentation. Stout v. Caruthersville Hdw. Co., 131 Mo. App. 520, 110 S.W. 619; Castorina v. Hermann, 104 S.W. (2d) 297, 340 Mo. 1026; Morley v. Harrah, 167 Mo. 74, 66 S.W. 942; Matz v. Miami Club Restaurant, 108 S.W. (2d) 975; 26 C.J. 1071; Grigsby v. Stapleton, 94 Mo. 423, 7 S.W. 421; Cecil v. Spurger, 32 Mo. 462, 92 Am. Dec. 140; Barron v. Alexander, 27 Mo. 530; McAdams v. Cates, 24 Mo. 223; Secs. 9406, 9417, R.S. 1939; Smith v. State Social Security Comm., 153 S.W. (2d) 741; Kelly v. State Social Security Comm., 161 S.W. (2d) 661; Moore v. State Social Security Comm., 233 Mo. App. 536, 122 S.W. (2d) 391; Nichols v. State Social Security Comm., 349 Mo. 1148, 164 S.W. (2d) 278; Chapman v. State Social Security Comm., 147 S.W. (2d) 157; Buettner v. State Social Security Comm., 144 S.W. (2d) 864; Parks v. State Social Security Comm., 160 S.W. (2d) 823; 48 C.J. 754; George v. Taylor, 55 Tex. 97; 1 Words & Phrases (2d Series), p. 1226; 17 C.J. 1375; 12 R.C.L. 407; Hobbs v. Boatright, 195 Mo. 693; Dryden v. Kellogg, 2 Mo. App. 87; Trask v. Livingston County, 210 Mo. 582; Warner v. Commack, 37 Iowa, 642; Hodson v. Marks, 300 N.Y.S. 661; Bliss on Code Pleading (3 Ed.), p. 259; Montgomery County v. Gupton, 139 Mo. 303; Chariton County v. Hartman, 190 Mo. 71; County of Audrain v. Muir, 297 Mo. 509; City of Worchester v. Quinn, 23 N.E. (2d) 463, 125 A.L.R. 707; United States v. Malone, 44 Fed. 75, 71 L. Ed. 425; In re Beaman's Estate, 13 N.Y.S. (2d) 188; State of Okla. ex rel. v. Estate of Knight, 137 Pac. (2d) 894; 33 C.J. 203; Arthur v. Wheeler & Wilson Mfg. Co., 12 Mo. App. 335; Lack v. Brecht, 166 Mo. 242, 65 S.W. 976; Harmon v. Dickerson, 184 S.W. 39; McBeth v. Craddock, 28 Mo. App. 380. (4) The trial court erred in rendering judgment for costs against the plaintiff because plaintiff is a representative of the State and costs are not recoverable against the State. Murphy v. Limpp, 147 S.W. (2d) 42, 347 Mo. 249; Humphrey v. McKown, 217 S.W. 851; 59 C.J., p. 332, sec. 503; Howlett v. State Social Security Comm., 347 Mo. 784, 149 S.W. (2d) 806; 59 C.J., p. 307, sec. 464; Chicago, M. & St. P. Ry. Co. v. Public Utilities Comm. of Idaho, 275 Pac. 780, 47 Idaho, 346; Washington Recorder Co. v. Ernst, 91 Pac. (2d) 718; Hartwig-Dischinger Realty Co. v. Unemployment Comp. Comm., 168 S.W. (2d) 78.

C.A. Calvird and Crouch & Crouch for respondent.

(1) Any error in giving of a peremptory declaration of law is waived when not set out in the motion for new trial and since plaintiff in its motion made no issue of the matter it cannot be reviewed by this court. Fruit Supply Co. v. C., B. & Q. Ry. Co., 119 S.W. (2d) 1010; Neal v. Curtis & Co. Mfg. Co., 41 S.W. (2d) 543, 328 Mo. 389. (2) In the absence of statute recovery can be had against the estate of a recipient of old-age assistance only upon allegation and proof of common law fraud and deceit. 48 C.J., sec. 202, pp. 519-520; 21 R.C.L., p. 726; 41 Am. Jur., p. 714; Montgomery County v. Gupton, 139 Mo. 303, 39 S.W. 447; Chariton County v. Hartman, 190 Mo. 71, 88 S.W. 617; Audrain County v. Muir, 249 S.W. 383, 297 Mo. 499; Alameda Co. v. Janssen, 106 Pac. (2d) 11, 130 A.L.R. 1141; Peabody v. Holland, 178 Atl. 888, 98 A.L.R. 86; Worchester v. Quinn, 23 N.E. (2d) 463, 125 A.L.R. 707; County Dept. of Public Welfare v. Potthof, 44 N.E. (2d) 494. (3) This cause was tried by the trial court judge with jury waived and the finding was for the defendant. Upon review this court cannot weigh the evidence and this court should affirm the judgment if there is substantial evidence to support the judgment. There was ample substantial evidence that (a) Mrs. Butler made no false representations and (b) she had no intention of deception and the decision of the trial court is binding on this appeal. St. L. & S.F. Ry. Co. v. Dillard, 43 S.W. (2d) 1034, 328 Mo. 1154; Dunham v. Philadelphia Cas. Co., 162 S.W. 728, 179 Mo. App. 558; Stephens v. Fowlkes, 92 S.W. (2d) 617, 338 Mo. 527; Slack v. K.C. Gas Co., 120 S.W. (2d) 70, 233 Mo. App. 306; Gronoway v. Markham, 115 S.W. (2d) 136, 232 Mo. App. 1118; Kansas City v. Boyer, 202 S.W. 1086; Griffith v. K.C. Mat. & Const. Co., 46 Mo. App. 539; Meridian Lbr. Co. v. Lowry Lbr. Co., 229 S.W. 267, 207 Mo. App. 41. (4) Where costs are improperly taxed the appellate court can modify the judgment without reversal. Sec. 973, R.S. 1939; Bryant v. Russell, 127 Mo. 422, 30 S.W. 107; Bank of Oak Ridge v. Duncan, 40 S.W. (2d) 656, 328 Mo. 182.

BARRETT, C.

This action originated as a claim by the State Social Security Commission against the estate of Lucinda Butler to recover old age assistance grants in the sum of $710.00 alleged to have been obtained by fraud and deceit on the part of the recipient. The cause was certified by the Kansas City Court of Appeals. State ex rel. v. Butler's Estate, 175 S.W. (2d) 55. The consequence of the certification is that we are under a duty to consider the cause as an original appeal. Const. Mo., Art. 6, Amend. 1884, Sec. 6.

The Commission contended in the Court of Appeals, as it does here, that the trial court had sustained and given the defendant's peremptory instruction at the close of all the evidence and, therefore, it was entitled to a new trial because it had adduced substantial evidence in support of its cause of action. Its position was that having made a prima facie case it was the duty of the trial court, trying a jury waived case, to pass on the credibility of the witnesses, weigh the evidence and give judgment accordingly as it found the facts. The defendant contended and the Court of Appeals found that the Commission had not assigned as error or ground for a new trial that the trial court had sustained or given the defendant's demurrer and, therefore, could not urge the point on appeal. Fruit Supply Co. v. Chicago, B. & Q.R. Co. (Mo. App.), 119 S.W. (2d) 1010. The Court of Appeals was of the view, however, that its opinion was in conflict with Locke v. Warden (Mo. App.), 162 S.W. (2d) 642.

There was substantial evidence tending to show that Mrs. Butler was guilty of fraud and deceit in procuring and receiving her old age assistance grants. But the court could also find after passing on the credibility and weight of the evidence that the Commission had not satisfactorily sustained its burden of proof and that Mrs. Butler was not guilty of fraud.

[1] The point of the demurrer is important. If the trial court merely heard the cause and found for the defendant on the facts we are bound by the court's finding. Schnurman v. Western Casualty & Surety Co., 352 Mo. 650, 179 S.W. (2d) 31; Ferguson v. Long, 341 Mo. 182, 107 S.W. (2d) 7. While on the other hand if the court did in fact sustain the demurrer, and the point was raised by the Commission so as to be reviewable, the court was in error because its duty, in view of substantial evidence, was to weigh the evidence and decide the case on its merits. Outcault Advertising Co. v. Mack (Mo. App.), 259 S.W. 511; Grams v. Novinger (Mo. App.), 231 S.W. 265; Saucier v. Kremer, 297 Mo. 461, 249 S.W. 640; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W. (2d) 143. The court in such latter circumstance could not peremptorily direct a verdict. Central States S. & L. Assn. v. United States F. & Guar. Co., 334 Mo. 580, 66 S.W. (2d) 550.

In the view we take of the case we think it unnecessary to resolve the conflict, if there be one, or decide whether the Commission in fact raised the point in its motion for a new trial. We also assume for the purposes of this opinion that the Commission...