State ex rel. State Dept. of Public Health and Welfare v. Ruble

• Decision Date: 25 November 1970
• Docket Number: No. 9011,9011
• Citation: 461 S.W.2d 909
• Parties: STATE of Missouri ex rel. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Division of Welfare, Plaintiff-Appellant, v. Charles L. RUBLE, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 909

461 S.W.2d 909

STATE of Missouri ex rel. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Division of Welfare, Plaintiff-Appellant, v. Charles L. RUBLE, Defendant-Respondent.

No. 9011.

Springfield Court of Appeals, Missouri.

Nov. 25, 1970.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 11, 1970.

Application to Transfer Denied Feb. 8, 1971.

Elmore G. Crow, Curtis J. Quimby, Edward D. Summers, Jefferson City, for plaintiff-appellant.

Urban C. Bergbauer, Jr., Ironton, for defendant-respondent.

TITUS, Presiding Judge.

For the use and benefit of the division of welfare, an integral part of the department of public health and welfare (§ 207.010) ¹, this action was brought in the name of the State of Missouri (Rule 52.01, § 507.010) to recover from defendant the sum of $15,111, said to be to amount of old age assistance benefits that he had received from May 1948 through February 1969. Differing from its paper allegations, plaintiff's proof and submission to the jury was restricted to only the payments made 'between March 1, 1959, and February 1, 1969, not to exceed $8,385.' Consequently, in this appeal taken by plaintiff from the judgment entered by the Circuit Court of Iron County on the verdict returned in favor of the defendant, the amount in dispute is $8,385 and we have appellate jurisdiction. Missouri Constitution, art. V, §§ 3 and 13, V.A.M.S.; § 477.040; Mitchell v. Southwestern Bell Telephone Company, Mo.App., 298 S.W.2d 520, 522(2). ²

Plaintiff's petition, inter alia, averred that 'each and every payment' of old age assistance benefits 'was obtained by the Defendant through misrepresentation and nondisclosure of material facts and the payments were * * * made in violation of the provisions of Chapter 208, * * * which was not discovered by the Plaintiff * * * until January 1969 * * * when * * * it was discovered that the Defendant owned and had an interest in property, cash and resources, the value of which exceeded the sum of $7,500 which disqualified him to receive * * * benefits at all times mentioned herein.' Plaintiff's verdict directing instruction charged the jury that 'Your verdict must be for plaintiff if you believe: First, that during the time when defendant * * * was being paid old age assistance benefits by plaintiff, he owned or possessed cash, securities or other property which was readily convertible into cash of a value in excess of $1,500.00 while married or $750.00 after becoming unmarried, and Second, that said * * * benefits were obtained by defendant from plaintiff through misrepresentation, nondisclosure of material facts or through mistake of fact, and Third, as a direct result of such misrepresentation, nondisclosure or mistake of fact, defendant received old age assistance benefits to which he was not entitled.'

Defendant and his wife were born in 1883 and Mrs. Ruble died in May 1968 after a protracted illness. Mrs. Slover, a caseworker in the welfare office of Iron County who had handled defendant's case from 1948 until it was closed on February 7, 1969, was aware that 'in the last 10 years' the defendant's hearing 'has been pretty bad,' and for this reason she 'always had to be very, very careful * * * to be sure he understood me.' Defendant's formal education had been limited to 'about the second reader,' and although he claimed he could 'read printing,' defendant said that 'regular writing like that, I can't read.'

Results of the caseworker's periodic investigations to determine defendant's eligibility vel non for old age assistance benefits, were recorded either upon a document titled 'Claimant's Eligibility Statement' or 'Reinvestigation Form.' Both instruments were completed in longhand and signed by the caseworker; defendant and his wife also signed the 'Claimant's Eligibility Statement.' Admitted into evidence upon plaintiff's offers were one claimant's eligibility statement dated in 1960 and five reinvestigation forms prepared from interviews conducted in 1963, 1965, 1966, 1967 and 1968. According to Mrs. Slover, these exhibits accurately reflected information provided by defendant and his wife and showed that they had cash in the sum of $377 in July 1960 and $350 when interviewed in January 1968, but had no cash whatever at the times of the other investigations and at no time were possessed of a checking, postal or savings account, a safe (or safety) deposit box or securities of any kind. The caseworker additionally testified that she had no reason to doubt what defendant had told her on these occasions or to suspect she was not being told the truth at the time she questioned the defendant and his wife concerning their possessions.

The last reported episode in Mrs. Slover's association with defendant commenced on January 23, 1969, as his 'case was due for re-investigation.' Being cognizant of the expenses made necessary by his wife's prolonged sickness and death, the caseworker said she was astonished to learn, as defendant assured her, that all the bills had been paid, including those incurred 'for help at home for sometime before (defendant's wife) went into the nursing home and for several months in the nursing home and (the $600 balance on) the funeral bill.' When Mrs. Slover inquired of defendant where he had obtained the cash to pay these bills, 'he said he just got it' and, as narrated by the caseworker, defendant 'admitted' he had a safe deposit box at a bank in Annapolis, Missouri, which he had obtained subsequent to his wife's death. By prearrangement, defendant and Mrs. Slover went to the bank on February 4, 1969, to inspect the contents of the safety deposit box. The caseworker told the jury that upon arriving at the bank, defendant told her he had been to the box 'the day after I talked to him' on January 23rd, and that he had $133 in cash.

Defendant, in response to plaintiff's written interrogatories (Rule 56.01), and as later confirmed at trial by him, stated that 'on and prior to January 24, 1969,' he had $7,700 in the bank safety deposit box which he removed that date to give to a Mrs. Woodrow Ruble 'to receive care, room and board for life.' Due undoubtedly to his hearing problem and the fact he was 86 years old when he took the stand, defendant's testimony (the only evidence he offered) was brief, but trying. He recounted that when the caseworkers would 'come around and see me once in awhile' that he 'told them what property (I) owned at that time,' and 'what I told them was true about my property' at the particular times he was interviewed. Defendant's explanation for having $7,700 was that 'I just saved it' a little each month out of the old age assistance benefits he had received since 1948. ³ On cross-examination, defendant was unable to say what amount of money he had saved by any particular year between 1959 and 1969, and accounted for his lack of knowledge on the subject by repeated assurances that 'you ask me things I don't recollect about * * * I couldn't tell you, son,' and 'I am not going to tell you no lies.'

Plaintiff's first point on appeal is that the trial court erred in overruling its motion for a directed verdict because plaintiff's 'evidence was documentary and undisputed and (defendant) did not make a showing of any probative facts constituting a defense against his liability for the repayment of public assistance benefits paid to him.' To comprehend this assignment, which is couched on nothing better than a sweeping conclusion, it is necessary to augment it with plaintiff's argument which partakes of a further conclusion that Subsec. 3, § 208.210 'clearly creates a presumption that (defendant) had * * * $7,700.00 during (all) the time benefits were paid to him and (since defendant) made no effort whatever to rebut this presumption (plaintiff) was entitled to a judgment.' Of course, any attempt to fathom plaintiff's intendments by this assignment and argument requires that we know the applicable parts of the involved statute, which read as follows:

'208.210. * * * 2. Any benefits paid when the recipient or his spouse is in possession of such undeclared property or income shall be recoverable by the division of welfare as a debt due to the state. If during the life, or upon the death, of any person who is receiving or has received benefits, it is found that the recipient or his spouse was possessed of any property or income in excess of the amount reported that would affect his needs or right to receive benefits, or if it be shown such benefits were obtained through misrepresentation, nondisclosure of material facts, or through mistake of fact, the amount of benefits, without interest, may be recovered from him or his estate by the division of welfare as a debt due the state.

3. The possession of undeclared property by a recipient or his spouse with whom he is living shall be prima facie evidence of its ownership during the time benefits were granted, and the burden to prove otherwise shall be upon the recipient or his legal representative.'

Plaintiff's assertion that Subsec. 3, § 208.210 'clearly creates a presumption,' is error--the word is not employed in the statute. The term 'presumption' is not synonymous with the term 'prima facie evidence.' 29 Am.Jur.2d, Evidence, § 4, at p. 38. A presumption is not evidence; neither may it be weighed as evidence. Griffith v. Continental Casualty Co., 299 Mo. (banc) 426, 444(8), 253 S.W. 1043, 1048(10); Di Paoli v. Prudential Insurance Company, Mo.App., 384 S.W.2d 861, 865(3). Presumptions are not for consideration by the triers of the facts, but are procedural to effect a shifting to defendant of the burden of going forward with the evidence and disappear from the case upon the production of substantial evidence which controverts the fact presumed. Michler v. Krey Packing Co., 363 Mo. (banc) 707, 715, 253 S.W.2d 136, 140; JD v. MD, Mo.App., 453 S.W.2d 661, 663(4); Ward v. Penn Mutual Life Insurance Company, Mo.App., 352 S.W.2d 413, 419(2). On...