Trieseler v. Helmbacher

• Decision Date: 02 March 1943
• Docket Number: 38134
• Citation: 168 S.W.2d 1030,350 Mo. 807
• Parties: Louis E. Trieseler, Administrator of the Estate of Bert P. Bebee (also known as Bert P. Beebe), Deceased, (Plaintiff) Appellant, v. Mitzi Laun Helmbacher (formerly Mitzi Laun; also known as Mitzi Bebee, Mitzi Schmid and Amelia Schmid), Kate Schmid, Frederick M. Schmid (also known as Fred Schmid), and Chippewa Trust Company, a Corporation (Defendants), Respondents
• Court: Missouri Supreme Court

168 S.W.2d 1030

350 Mo. 807

Louis E. Trieseler, Administrator of the Estate of Bert P. Bebee (also known as Bert P. Beebe), Deceased, (Plaintiff) Appellant, v. Mitzi Laun Helmbacher (formerly Mitzi Laun; also known as Mitzi Bebee, Mitzi Schmid and Amelia Schmid), Kate Schmid, Frederick M. Schmid (also known as Fred Schmid), and Chippewa Trust Company, a Corporation (Defendants), Respondents

No. 38134

Supreme Court of Missouri

March 2, 1943

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Affirmed.

Watts & Gentry and Henry G. Trieseler for appellant.

(1) Fraud may be shown by circumstances, and it is often hard to show it by direct proof. Howard v. Zweigart, 197 S.W.2d 46; Massey v. Young, 73 Mo. 272. (2) This being an equity case this court will inquire into the facts and will not be bound by the finding of the trial judge, as it would be in a law case. While deference is paid by this court to the finding of a trial court on oral evidence nevertheless where it is clearly apparent that the trial judge has reached the wrong decision, this court will reverse the judgment. Shaw v. Butler, 78 S.W.2d 420; Peikert v. Repple, 114 S.W.2d 999; Columbian Natl. Life Ins. Co. v. Dubinsky, 160 S.W.2d 727; Aden v. Dalton, 107 S.W.2d 1071; Mercantle-Commerce Bank & Trust Co. v. Kieselhorst, 164 S.W.2d 342; Bleyer v. Bleyer, 219 Mo. 99.

B. Sherman Landau for respondent Mitzi Laun Helmbacher; Noah Weinstein for respondents Kate Schmid and Frederick N. Schmid.

(1) It is the duty of appellants, in an equity action of this nature, to present to the appellate court all of the evidence which was before the trial court, including all exhibits, and to present the evidence in a form that can be understood. Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392; Bueker v. Aufderheide, 345 Mo. 833, 136 S.W.2d 281. (2) Plaintiff failed to discharge the burden of proof, resting upon him by law, to make out his case by clear and convincing evidence. Jones v. Nichols, 280 Mo. 65, 216 S.W. 962. (3) Contrary to appellant's contention, fraud is not presumed. If presumption may be indulged, right, rather than wrong, action is presumed. Aslin v. Stoddard County, 341 Mo. 138, 106 S.W.2d 472. (4) The weight and credit of plaintiff's witnesses was for the chancellor's determination, even though uncontradicted by oral testimony. State ex rel. Missouri Gas & Electric Serv. Co. v. Trimble, 307 Mo. 536, 271 S.W. 43.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

This is a suit for an accounting. The petition, filed September 9, 1939, declares on the theory of a constructive trust, alleging a conspiracy to defraud, whereby defendants, other than the defendant, Chippewa Trust Company, by means of false promise, induced plaintiff's decedent to turn over to them sums of money totaling an amount in excess of $ 170,000. It is alleged that the money was placed and is kept in one or more safety boxes rented of the defendant, Chippewa Trust Company, St. Louis, Missouri. The petition prayed, and the court granted, a temporary order restraining the defendants from disturbing, or permitting to be disturbed, any money in the boxes. Defendants, except Chippewa Trust Company, plead the statute of limitations and specifically traverse the several material allegations of the petition. The defendant, Chippewa Trust Company, did not answer. On the trial of the cause the court dissolved the temporary injunction, found for defendants and dismissed the bill.

Respondents have moved to dismiss the appeal for the reason, they state, appellant has not complied with Rule 13 of this court, in that appellant has failed to set forth in the abstract of the record sufficient of the record as is necessary to a complete understanding of all the questions presented for a decision, that the abstracting of the testimony is narrative in form, that the narration is not aligned with a fair construction of the testimony, and that the narration does not indicate that certain witnesses testified to the contrary elsewhere in their testimony. Respondents have set forth in their printed argument parts of the testimony purporting to have been taken from the bill of exceptions as examples of the appellant's alleged failure to comply with the rule. Respondents also urge their cause on the merits by reference, in part, not to the abstract of the record, but to the portions of testimony so set out in their argument. We have carefully examined the abstract of the record and find that the presentation of the evidence is almost entirely in narrative form and believe that it would have been better had testimony of certain witnesses been set forth in question and answer form -- for a decision in this case depends greatly on the credibility of witnesses. However, we believe the abstract of the record is not so faulty in this regard as to merit such drastic action as dismissal of the appeal. Since the abstract of the record is not so faulty as to merit dismissal of the appeal, it was the respondents' duty to file an additional abstract of the record if not satisfied with appellant's, and especially if it was their intention to urge on the merits matters not included in appellant's abstract of the record. They should not have referred in their printed argument to testimony transcribed in the bill of exceptions, and not included in any abstract of the record, for the bill of exceptions is not before this court.

The motion to dismiss the appeal is overruled.

Plaintiff, appellant, is the duly qualified administrator of the estate of Bert P. Bebee, sometimes Beebe, who died of a gunshot wound suffered at his office at 3214 South Grand Avenue, St. Louis, Missouri, on April 22, 1938. Bebee was a physician and had practiced in St. Louis, Missouri, for about twenty-five years. The defendant, Mitzi Laun, had been the wife of Dr. Bebee; they were divorced in October, 1932; since the trial, she has married one Helmbacher. Katie Schmid is the mother of Mitzi Laun, and the defendant, Fred Schmid (Frederick M. Schmid), is the husband of Katie Schmid, but the stepfather of Mitzi Laun. Notwithstanding the divorce, the doctor continued to reside at the home of the Schmids, except for short intervals, until February, 1938; the four were on very amicable terms; Dr. Bebee, according to two witnesses, sisters of Katie Schmid, was fond of Katie Schmid, whom he invariably addressed as "mother"; he said she was the "best mother he ever had" and that the "Schmid home was the best home he ever had." Mitzi Laun was a nurse and served Dr. Bebee at his offices as assistant from March, 1933.

Dr. Bebee's practice was not in harmony with the high ethical standards of his profession. It was covert -- perhaps unlawful, for he had two indictments pending against him in 1938, charging him with the crime of manslaughter by abortion, and there was, the same year, a proceeding pending to revoke his license as a physician.

The Collector of United States Internal Revenue was interested in the doctor's affairs; assessed penalties and taxes against him for about $ 11,000, for the years 1929 to 1935 inclusive, afterwards tentatively compromised for $ 5,000, which was paid by Dr. Bebee in early 1938, refunded by the collector to the estate after the death of Bebee, and another compromise effected thereafter by the administrator, plaintiff herein, in the sum of $ 2,706, which sum has been allowed as a claim by the probate court, but was unpaid at the time of the trial.

Dr. Bebee kept a record of his practice and earnings in a "year book," one book for each year; the entries were in secret symbols. The year book for 1938 was not at his desk at the time of his death and no books of prior years were in evidence; one or more of them, it seems, were in the hands of the Federal authorities. It appears that Dr. Bebee carried a bank account at the Tower Grove Bank and Trust Company. He rented a safety box, No. 1754, of that bank in 1928 and continued the use of it until 1935. The box was visited twenty-two times in 1932; twenty-six times in 1933; fifteen times in 1934. the last visit in said year being September 10 at three o'clock; once in 1935, July 12th at one o'clock, on which date the records of the bank show "Box found empty Surrendered by Palmer Branham." The bank has a memorandum of surrender of the box signed by Dr. Bebee of date July 11, 1935.

Defendant Katie Schmid rented safety deposit box No. 2122 at the Mississippi Valley Trust Company on August 20, 1934; on September 14, 1934, she exchanged this box for safe No. 5905, a larger box. Mitzi Laun and Fred Schmid had authority to visit the box. It was surrendered August 13, 1937. On August 13, 1937, Katie Schmid rented safety box No. 2026 of the Chippewa Trust Company under the name of "Augusta Humer," Mitzi Laun had authority to visit this box, but it was visited only by defendant, Katie Schmid (Augusta Humer), so far as bank's records show, on August 18, 1938; September 9, 1938; October 6, 1938; November 30, 1938; once, date not known; and on January 20, 1939, on which date its use was surrendered.

Mitzi Laun rented safety deposit box No. 2093 at Mississippi Valley Trust Company on February 27, 1929, as Mrs. Mitzi Bebee, and renewed her contract of rental on September 14, 1934, as Mitzi Laun. Katie Schmid and Fred Schmid both had authority to visit this box. Its use was surrendered January 26, 1937. No evidence was introduced of visits to this box.

Dr Bebee was not a well man. He was admitted to Alexian Brothers Hospital for examination August 22, 1934, discharged August 24, 1934, admitted for treatment September 19, 1934, discharged October 13, 1934; diagnosis -- tabo paresis. It was the testimony of Dr. Hillel Unterberg, distinguished neurologist, who...