Terminal R. R. Ass'n of St. Louis v. Schmidt

• Decision Date: 17 June 1942
• Docket Number: 37167
• Parties: Terminal Railroad Association of St. Louis, a Corporation, Plaintiff-Appellant, v. John J. Schmidt, Executor of the Estate of Ernest W. Aly, Charles P. Noell and Josefina Amerigo Aly, Defendants-Respondents
• Court: Missouri Supreme Court

163 S.W.2d 772

349 Mo. 890

Terminal Railroad Association of St. Louis, a Corporation, Plaintiff-Appellant, v. John J. Schmidt, Executor of the Estate of Ernest W. Aly, Charles P. Noell and Josefina Amerigo Aly, Defendants-Respondents

No. 37167

Supreme Court of Missouri

June 17, 1942

Rehearing Denied July 28, 1942. Motion to Transfer to Banc Overruled July 28, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Carleton S. Hadley, Arnot L. Sheppard, William A. Thie and Walter N. Davis for appellant.

(1) The four letters written by Ernest W. Aly immediately prior to his death to Johnson, Howell, Perry and Davis to the effect your company owes me nothing on my case, as it was fixed faked and framed, were competent, relevant and material and admissible in evidence. An opinion or conclusion, if it relates to the facts in controversy, is admissible as an admission against interest. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Hinters v. Hinters, 114 Mo. 26, 21 S.W. 456; Forrester v. Sullivan, 231 Mo. 345, 132 S.W. 722; Friedman v. United Rys. Co., 293 Mo. 235, 238 S.W. 1074; Swain v. Oregon Motor Stages, 82 P.2d 1084, 18 A. L. R. 1225; Stocklen v. Barrett, 114 P. 108. (a) Declarations are admissible when it appears that declarant is deceased, that he possessed competent knowledge of the facts or that it was his duty to know them, and that his declarations were at variance at the time they were made with his interest. Gerkey v. Hampe, 274 S.W. 510; Wills v. Berberich Del. Co., 339 Mo. 856, 98 S.W.2d 569; Cape County Bank v. Wilson, 225 Mo.App. 14, 34 S.W.2d 981; Banker v. Fidelity, etc., Co., 335 Mo. 305, 73 S.W.2d 242; Osmak v. Amer. C. & F. Co., 328 Mo. 159, 40 S.W.2d 714; Wynn v. Cory, 48 Mo. 346. (b) A plea of guilty is an admission and is admissible in evidence in a civil case as to the same facts. Corwin v. Walton, 18 Mo. 72; Mead v. City of Boston, 3 Cush. 404; Myers v. Casualty Co., 123 Mo.App. 682. (c) The word "fake" in the sense it has obtained as a slang word means a swindle, a trick -- to steal, to filch. Midland Pub. Co. v. Trade Journal Co., 108 Mo.App. 223. The word "frameup" involves fraud. State Farm Mut. Auto Ins. Co. v. Bonacci, 111 F.2d 412. (2) The trial court erred in rendering judgment for defendants herein, because the judgment, finding, order and decree is contrary to equity, to the law and to the evidence of this case for the reasons following: (a) The trial court erred in refusing to set aside the judgment obtained by Ernest W. Aly against Terminal Railroad Association of St. Louis in Cause No. 151,354-B in the Circuit Court of the City of St. Louis, Missouri, rendered on or about January 8, 1936, for the reason that said Aly knew at the time of the trials of said case that said case was fixed, faked and framed and failed to disclose such facts to said Terminal Railroad and to the court, as was his duty so to do. Wonderly v. Lafayette Co., 150 Mo. 635, 51 S.W. 745; West v. Wayne, 3 Mo. 16; Guild v. Phillips, 44 F. 461; Ocean Ins. Co. v. Fields, 2 Story, 59, 18 Fed. Cas. 532; Spencer v. Vigneaux, 20 Cal. 442; Reed v. Harvey, 23 Ark. 44; Fish v. Lane, 3 Hayw. 342; Black on Judgments, sec. 371; Freeman on Judgments, sec. 491; Cox v. Mobile, etc., Ry. Co., 44 Ala. 611; Merrill v. San Diego, etc., Natl. Bank, 94 Cal. 59; Chicago, etc., Ry. Co. v. Hay, 119 Ill. 493; Melick v. First Nat. Bank, 52 Iowa 94; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Cairo, etc., R. Co. v. Titus, 28 N.J.Eq. 269; Link v. Link, 48 Mo.App. 345; Grover v. Faurot, 76 F. 257, 22 C. C. A. 156; Vennum v. Davis, 35 Ill. 568; Chicago, etc., R. Co. v. Callicotte, 267 F. 799, certiorari denied, 255 U.S. 570, 41 S.Ct. 375, 65 L.Ed. 791. (b) The trial court erred in refusing to set aside the judgment obtained by Ernest W. Aly against Terminal Railroad Association of St. Louis rendered in Cause No. 151,354-B in the Circuit Court of the City of St. Louis on or about January 8, 1936, for the reason that the four letters written by said Ernest W. Aly immediately preceding his death in January, 1939, to the effect, your company owes me nothing, as my case was fixed, faked and framed, constituted newly discovered evidence, which entitled said Terminal Railroad to a new trial in said Cause No. 151,354-B and to have that issue again tried before a jury. Ocean Ins. Co. v. Fields, 2 Story, 59, 18 Fed. Cas. 532; Guild v. Phillips, 44 F. 461; Chiatovich v. Mercer, 48 Nev. 344, 232 P. 215; 15 R. C. L. 768; 34 C. J. 478, 479. (c) Of course, the judgment of a court of record may be set aside for fraud in the procurement of the judgment. Crow v. Crow-Humphrey, 73 S.W.2d 807; Fidler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Morley v. Land Mfg. Co., 289 Mo. 221, 232 S.W. 704; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565; Currier v. Esty, 110 Mass. 536; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Ferguson v. Wachs, 96 F.2d 910. (d) The salutary rule is that judgments will be set aside when the result of perjured testimony. Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Publicker v. Shallcross, 106 F.2d 949; Howard v. Scott, 225 Mo. 685, 125 S.W. 1158; Laithe v. McDonald, 12 Kan. 340; 1 Black on Judgments (2 Ed.), sec. 323. (3) Where the facts on trial develop a different situation, a former judgment on analogous facts is not res adjudicata. Marshall v. Holmes, 141 U.S. 589, 35 L.Ed. 870; Guild v. Phillips, 44 F. 461; Munday v. Knox, 323 Mo. 411, 19 S.W.2d 487; Munday v. Knox, 321 Mo. 168, 98 S.W.2d 960; Ocean Ins. Co. v. Fields, 2 Story, 59, 18 Fed. Cas. 532; See cases cited under Point (2). (4) The trial court erred in admitting in evidence Noell's Exhibits A, B, C, D, E, F, J, K, L, M, N and O, all of which comprised Aly's divorce proceedings, and letters from Aly to Mathews and Mathews to Aly, and letters from Aly to Mrs. Aly and A. H. Heidsieck to Mrs. Aly, and letters and envelopes from Aly to Noell, and admitting in evidence conversations between Mathews with Aly and between Reed and Aly, on the ground that said exhibits and said conversations were self-serving and hearsay declarations and were inadmissible in evidence. Missouri Digest -- Evidence -- Key No. 271; Ragsdale v. Achuff, 324 Mo. 1159, 27 S.W.2d 6; Lamphere v. Alfred, 99 S.W.2d 36; Bernblum v. Travelers Ins. Co., 340 Mo. 1217, 105 S.W.2d 941; Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052; Bland v. Brundy, 335 Mo. 967, 74 S.W.2d 612; Commerce Trust Co. v. Langley, 9 S.W.2d 923; McCue v. Schiveer, 221 Mo.App. 1029, 295 S.W. 816. (5) Only Josefina Amerigo Aly has pleaded that Aly was insane at the time he committed suicide, of which there is no evidence in the record. The other defendants do not plead insanity, as was admitted, but merely pleaded that he was distraught and beside himself with a consuming fear and hatred of his wife, and that he penciled the notes not as a statement of fact, but in a frenzied determination to prevent his wife from receiving his money. This does not constitute a defense. Suicide raises no presumption of insanity, for one is presumed to have been sane. Ritter v. Mutual L. Ins. Co. of N. Y., 69 F. 505; Supreme Council of R. A. v. Wishart, 192 F. 453; Dickerson v. Northwestern Mut. L. Ins. Co., 200 Ill. 270; Weed v. Mutual Ben. L. Ins. Co., 90 N.Y. 561; Shipman v. Protected Home Circle, 174 N.Y. 398; Roche v. Nason, 185 N.Y. 128; Jones v. Gorham, 90 Ky. 622; Karow v. Continental Ins. Co. of N. Y., 57 Wis. 56; McElwee v. Ferguson, 43 Md. 479; Merritt v. Cotton States Life Ins. Co., 55 Ga. 103. (6) As this is an equity suit to set aside a judgment which was determinable by the rules of law enunciated by the United States Supreme Court, this equity suit is also determinable by the rules of law enunciated by the United States Supreme Court. Aly v. Terminal Railroad, 78 S.W.2d 851; Aly v. Terminal Railroad, 119 S.W.2d 363.

Cox, Blair & Kooreman for John J. Schmidt, Executor of the Estate of Ernest W. Aly, et al.

(1) The general averments of the petition in this case fail to state a cause of action. Klaber v. Unity School, 51 S.W.2d l. c. 35; Thompson & Co. v. Road Dist., 19 S.W.2d l c. 1053. (2) The petition does not allege and there is no evidence tending to show extrinsic fraud in this case. The single thing appellant actually seeks is to annul Aly's judgment on the ground that he testified falsely on the three trials of his action for damages. This court, from its early years to the present time has consistently held that a judgment cannot be set aside, in equity on the ground that there was false swearing on the trial at law. The rule is practically universal. Railroad v. Merrielees, 182 Mo. l. c. 140-143, citing many authorities and decisions from Missouri and other States, and the United States Supreme Court, including Jones v. Brinker, 20 Mo. 87; Hamilton v. McLean, 139 Mo. l. c. 685, 686, 687, citing many decisions; Peeters v. Schultz, 300 Mo. l. c. 336, 337, 338, 339, citing many Missouri decisions and others; Johnson T. & R. Co. v. Belt, 46 S.W. (2d), l. c. 155, 156 (7), 329 Mo. 515, citing many Missouri and other decisions; Hockenberry v. Bank, 88 S.W.2d l. c. 1036, 338 Mo. 31, citing many Missouri decisions and others, and texts; Lieber v. Lieber, 239 Mo. 1. (3) "A well established limitation of the general rule is that a judgment cannot be vacated for fraud where the particular fraud was in issue in the original proceedings. This limitation on the general principle will not be modified by the fact that additional evidence may have been discovered since the trial to prove the fraud. Nor will a judgment be set aside on the ground that the prevailing party practiced a fraud on the court and the adverse party by concealing the evidence of his fraud,...