VoJta v. Pelikan

• Decision Date: 13 May 1884
• Parties: THOMAS VOJTA, Appellant, v. JOHANNA PELIKAN, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 471

THOMAS VOJTA, Appellant,

v.JOHANNA PELIKAN, Respondent.

St. Louis Court of Appeals, Missouri.

May 13, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

O. B. GIVENS, for the appellant: Appellant's attorney had a right to make a peremptory challenge at any time before the jury were sworn to try the cause, or he had a right to change a peremptory challenge from one juror to another at any time before the jury were sworn.-- Jackson v. Pittsford, 8 Blackf. 194; Hunter v. Parsons, 22 Mich. 96; Johns v. The People, 25 Mich. 500; Hendrick v. The Commonwealth, 5 Leigh (Va.), 708. A peremptory challenge should be allowed to the plaintiff when asked for, after he has expressed himself satisfied with the jury, and after the peremptory challenges have been made by the defendant's attorney.-- Jones v. Vanzandt, 2 McLean, 611; The State v. Prichard, 10 Reporter, 273; The People v. Kohle, 4 Cal. 199; The People v. Jenks, 24 Cal. 11; The People v. McCarty, 48 Cal. 557; Lindsley v. The People, 6 Park. Cr. 233; Drake v. The State, 51 Ala. 30; Abenner v. The State, 9 Fla. 215. The unfair statements of counsel in argument to the jury, and his statements unsupported by the evidence is sufficient ground for a reversal of the judgment.-- Goldman v. Wolff, 6 Mo. App. 490; Tucker v. Henniker, 41 N. H. 317; Lloyd v. Railroad Co., 53 Mo. 509; Proffat on Jur. Tr., sect. 250.

EDMOND A. B. GARESCHE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This plaintiff, Thomas Vojta (or Voita) preferred a claim in the probate court against the estate of his mother, Johanna Pelikan, deceased, for services alleged to have been rendered at her instance and request, as a bar-tender or manager of a saloon kept by her, from the year 1867 until the date of her death, which occurred in 1881. His claim was allowed in the probate court for $1,460, one-half of the amount claimed. At the time of preferring the claim the plaintiff was administrator of the estate, and the probate court appointed George W. Lubke, Esq., to represent the estate as administrator pendente lite. From this decree of the probate court appeals were taken to the circuit court by the administrator pendente lite, and by two of the distributees of the estate. The cause was tried anew in the circuit court before a jury, and judgment was rendered for the defendant, and the plaintiff has appealed.

I. We are asked to reverse the judgment on the merits, as being contrary to the evidence. The evidence submitted in support of the claim was that of William Vojta, brother of the claimant, who testified that about fifteen years before, their mother had stated to the claimant, who had attained his majority, in the presence of the witness, that she wished him, the claimant, to take charge of and run her saloon for her, and that she would give him everything she had at her death, if he would take charge of it and run it, and remain with her until that time; that the claimant agreed to do so, and went to work for her soon after; that he remained with her and worked for her until she died, which was about April, 1881; that she died without making a will, or giving any of her property to the claimant, or paying him for his services; that, after the claimant went to work for her she often told the witness in the claimant's presence that he was to have everything at her death, and that he lived and boarded with her during the time he was working for her, and, during that time, got his clothes and spending money from her, or out of the business he had charge of.

Mrs. Mary Rosipal, testifying for the plaintiff, said that she knew his mother intimately for a great number of years prior to her death; that she had often seen the plaintiff working in the saloon for his mother--had seen him working there for a number of years; that she had often heard her say that he was to have everything at her death. “Thomas worked, and so did the other children, together in one household. Thomas ran the saloon business.”

Thomas Roth testified to a long acquaintance with Mrs. Pelikan, and to the fact of the services having been rendered by the claimant, as stated by the preceding witnesses. He also stated that he had been in the saloon business in St. Louis for about thirty-two years; that he knew the value of such services, and that they were worth about $15.00 per month with board and washing.

The only testimony offered to disprove the fact of this agreement between mother and son was that of four witnesses, one of them a sister, one a half sister, one a half brother to the claimant, and one a person who had long boarded with the claimant's mother prior to her death. The testimony of these witnesses tended to confirm that of the plaintiff's witnesses as to the fact of the rendition of the services by the claimant. It also tended to show that, during the period of the rendition of these services, the claimant received from his mother his board, clothing and spending money. Three of these witnesses testified to having heard the mother say that her property was to go to her children at her death. One of them testified that he had never heard his mother say that the claimant was to have all the property at her death. One of them testified that she had never heard her mother say that the claimant was to have anything for his services. Another one testified to having heard her mother say that “Thomas got as much of money and clothes for his work as any of us did.”

No exceptions were saved to any rulings upon the admission of testimony, and the instructions upon which the cause was submitted to the jury are not complained of. We see no ground on which we are authorized to disturb the verdict of the jury. The jury were authorized to infer from the testimony that the claimant had worked for his mother, and lived with her and her family, as some of the other children did, and that he had been treated by her as the other children had been treated--getting his living, his board, clothes, and spending money, from his mother, or out of her business. A contract of this importance, involving the entire disposition of the estate of the head of a large family, extending over a period of fifteen years, ought, it should seem, to be made out by very clear evidence. Common prudence would have required that such a contract be put in writing. To allow such an engagement to be established by parol evidence after the death of one of the principal parties to it, would strongly contravene the policy of the statute of frauds; though, of course, we do not mean to suggest that the case is embraced within the letter of the statute, for it does not appear that the title to real property is involved. It should certainly seem that a contract of this importance, if it were made, would be a matter of family history; and, while it is not very clear that declarations made by the mother to persons other than the claimant is competent evidence to disprove the fact of her having made such a contract, yet this evidence was not objected to. It was allowed to go to the jury; and it must be confessed that such declarations of a mother made to other children, and to an inmate in the house, furnish very persuasive moral evidence against the claim set up by the plaintiff. At all events, we know of no principle upon which we can set aside a verdict because the jury have refused to believe a story told by witnesses, which does not, in itself, seem to be intrinsically probable. Where the jury have found a verdict involving a hypothesis of fact entirely unsupported by the evidence, it is our duty to interfere and direct a setting aside of the verdict; but, they being the exclusive judges of the credibility of witnesses, where they have merely refused to believe affirmative testimony, although uncontradicted, such testimony must be of a very clear and undoubted character, probable in itself, and unattended with suspicion, in order to warrant us in holding that the jury were obliged to believe it and render a verdict in accordance with it.

II. When the case was called for trial in the circuit court, according to the recitals of the bill of exceptions, the following proceedings took place: “Eighteen men of the regular panel of jurors were called to the jury-box by the sheriff, from which the parties to this suit proceeded to select a jury to try this cause. Said eighteen men were sworn by the clerk on their voir dire, and examined by plaintiff's attorney as to their qualifications as jurors. Having concluded which, plaintiff's attorney made certain marks on the list of jurors furnished counsel by sheriff, opposite the names of three of said jurors, by way of indicating (in the manner customary in said court) that said names were to be stricken from the list by plaintiff's attorney, by virtue of his right of peremptory challenge. Plaintiff's attorney then handed said list of jurors to defendant's attorney, who thereupon proceeded to examine said eighteen men, touching their qualifications as jurors, and this examination disclosed the fact that one of the jurors, opposite whose name no mark had been made by plaintiff's attorney, as aforesaid, knew the defendant's attorney, and so stated at the time. Defendant's counsel, thereupon, in similar manner, indicated by marks on the jury list those whom he challenged...