Weisert v. Bramman

• Decision Date: 13 December 1948
• Docket Number: 40745
• Citation: 216 S.W.2d 430,358 Mo. 636
• Parties: Johanna Weisert, Respondent, v. Carl T. Bramman and Ella Bramman, Appellants
• Court: Missouri Supreme Court

216 S.W.2d 430

358 Mo. 636

Johanna Weisert, Respondent, v. Carl T. Bramman and Ella Bramman, Appellants

No. 40745

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Reversed.

Clem F Storckman for appellants.

(1) In order to amount to actionable duress there must be a danger not only threatened and impending but of such severity as to overcome the plaintiff's will-power, and the evidence in this case does not prove any impending contraint or danger or that the execution of the contract was directly caused by the alleged threats, but only the usual procedures connected with the settlement of a controversy. Wood v. Telephone Co., 223 Mo. 537, 123 S.W. 6; Breneman v. The Laundry, 87 S.W.2d 429; State ex rel. Order of United Commercial Travelers of America v. Shain, 98 S.W.2d 597; Stierman v. Meissner, 253 S.W. 383; Kelsay v. Kelly, 278 S.W. 791; R.S. Jacobs Banking Co. v. Federal Reserve Bank, 34 S.W.2d 173; Wilkerson v. Hood, 65 Mo.App. 491. (2) The plaintiff had ample time to consider the alleged threat and was advised by competent counsel throughout and hence cannot recover because duress cannot exist where a person has ample opportunity and time for investigation and deliberation, and to freely consult with whomsoever she sees fit. Tanner v. West, 99 S.W.2d 7; Morgan v. Joy, 26 S.W. 670, 121 Mo. 677; American Natl. Bank v. Helling, 202 N.W. 20; Payne v. Cavanaugh, 290 N.W. 807, 292 Mich. 305; Dallavo v. Dallavo, 155 N.W. 538, 189 Mich. 350; 17 C.J.S. pp. 528, 529, sec. 168. (3) The agreement of October 23, 1940 was not illegal or against public policy because the purpose of the agreement was "to settle and establish the rights of the parties amongst themselves to share in the estate of Albert Weisert, Sr., . . . so that said rights as herein fixed shall be forever fully protected and preserved"; and family settlements to preserve harmony and to settle definitely various interests are favored in the law. Brinkmeyer v. Helm, 100 S.W.2d 452; In re Allen's Estate, 271 S.W. 755; Adamack v. Herman, 33 S.W.2d 135; 16 Am. Jur. 931, Descent & Distribution, sec. 150. (4) A rightful or legal act, or the exercise of a legal right, is not rendered actionable as a wrong to another even if done with a bad intent or malicious motive and since the defendant Ella Bramman had a perfect right to bring an incompetency proceedings if she so desired, her alleged threat to do so is not actionable. McCoy v. McMahon Const. Co., 216 S.W. 770; Security Savings Bank v. Kellems, 274 S.W. 112; State ex rel. Merriam v. Ross, 25 S.W. 947; Hamilton v. Steininger, 168 S.W.2d 59; 1 Am. Jur. 421; 17 C.J.S. 532, sec. 172. (5) The undisputed facts that after the death of plaintiff's husband to whom the alleged threat pertained, the plaintiff with advice of counsel surrendered her joint control of the bonds on October 31, 1940, and thereafter paid a portion of the Federal Estate Tax called for by the agreement of October 23, 1940, cooperated in the final determination of said tax, accepted benefits from the estate, filed no claim against the estate, had no claim made against her, and made no claim of duress and coercion against the defendants for 4 years and 359 days, establishes a ratification and waiver. Wood v. Kansas City Tel. Co., 123 S.W. 6, 223 Mo. 537; Deibel v. Jefferson Bank, 207 S.W. 869; Bushnell v. Loomis, 137 S.W. 257; 17 C.J.S. pp. 529, 530, sec. 169; Sheppard v. Travelers, 124 S.W.2d 528, 233 Mo.App. 602; Arthur Fels Bond & Mtg. Co. v. Pollock, 149 S.W.2d 356; White v. McCoy Land Co., 87 S.W.2d 672, 229 Mo.App. 1019, Affirmed White v. Scarritt, 111 S.W.2d 18, 341 Mo. 1004; Farmers State Bank v. Day, 226 S.W. 595. (6) Plaintiff's long delay in claiming duress and bringing suit, her securing a transfer from the estate of the Packard automobile, retention by her of the securities, the gift of which was confirmed by the settlement agreement, the payment on account of Federal Estate taxes and the withholding of further claim against her by the estate or the defendants constitute an estoppel to maintain the present suit. Lyon v. St. Louis, 178 S.W. 96; Allen v. Best, 58 S.W.2d 810; Sage v. Finney, 135 S.W. 996; Koenig v. Koenig, 191 S.W.2d 269.

Hyman G. Stein for respondent.

(1) The defendants' threats to bring baseless incompetency proceedings against plaintiff's husband made the plaintiff fearful of her husband's death if she did not accede to the defendants' demands upon her, and the plaintiff was thereby placed in actionable duress. Mississippi Valley Trust Co. v. Begley, 298 Mo. 684, 252 S.W. 76; White v. McCoy Land Co., 229 Mo.App. 1019, 87 S.W. 672; Furman v. Gulf Ins. Co. of Dallas, Texas, 152 F.2d 891; Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060; Restatement, Torts, sec. 871, comments c, f. (2) The defendants' extortion of plaintiff's bonds from her by willful and illegal threats against the well-being of her husband could not constitute a "family settlement." Further, Albert Weisert's grandchildren by his son Albert, Jr. were also his heirs at law, and they took no part in the conduct complained of, and neither they, nor Albert Weisert's estate, received any part of the bonds taken from the plaintiff. White v. McCoy Land Co., 229 Mo.App. 1019, 87 S.W.2d 672; White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18; Sec. 4632, R.S. 1939. (3) The defendants' wrongful taking of plaintiff's bonds was a conversion. Any wrongful act which negatives or is inconsistent with the right of another to his property is per se a conversion. Williams v. Wall, 60 Mo. 318; People's State Savings Bank v. Missouri, K. & T. Ry. Co., 158 Mo.App. 519, 138 S.W. 915; Restatement, Torts, sec. 871, comment c; People's State Savings Bank v. Missouri, K. & T. Ry. Co., 192 Mo.App. 614, 178 S.W. 292; Pantz v. Nelson, 234 Mo.App. 1043, 135 S.W.2d 397. (4) The defendants' contention of estoppel is wholly without merit. Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223. (5) There was no waiver or ratification of the defendants' wrongful taking of the plaintiff's bonds from her. And by its verdict the jury has so found. White v. McCoy Land Co., 229 Mo.App. 1019, 87 S.W.2d 672; Holt v. Natl. Life & Accident Ins. Co., 263 S.W. 524; Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387; Langdon v. Kleeman, 278 Mo. 236, 211 S.W. 877; State ex rel. Continental Ins. Co. v. Becker, 336 Mo. 59, 77 S.W.2d 100; Parke Davis & Co. v. Mullett, 245 Mo. 168, 149 S.W. 461.

OPINION

Hyde, J.

This is an action for damages for the value of bonds alleged to have been obtained from plaintiff by duress. Plaintiff had a verdict for $ 10,000.00 actual damages, $ 3175.00 interest and $ 10,000.00 punitive damages. After remittitur of $ 5000.00 punitive damages, judgment was entered for $ 19,175.00 from which defendants appealed.

Defendants contend that court should have directed a verdict, as they requested, because plaintiff did not make a case of actionable duress. Plaintiff was the second wife of Albert Weisert, who died at the age of 83 on October 26, 1940. Defendant, Ella Bramman, was his daughter by his first marriage and defendant Carl T. Bramman was her husband. The duress alleged was that defendants demanded bonds ($ 10,000.00 face value, Laclede Gas Light Company) which plaintiff claimed Mr. Weisert had given to her; and threatened that unless she gave up these bonds "they would file in the Probate Court of the City of St. Louis, Missouri, an information and proceeding charging that plaintiff's said husband was of unsound mind and incapable of managing his affairs." Plaintiff claimed that these and other bonds were given to her in settlement of an antenuptual contract. However, on October 23, 1940, the parties by a written contract, prepared by their lawyers, agreed as to what property plaintiff was to get in settlement of this ante-nuptual contract and that Ella Bramman was to receive these bonds when her father died. They were delivered to her, five days after his death, on October 31, 1940. This suit was commenced on October 17, 1945.

Defendants contend that plaintiff did not make a case for the jury on duress because she had ample time to consider the alleged threat and was advised by competent counsel concerning it. They further contend that even if there was duress, the agreement was not void, but only voidable, and could only have been repudiated by acting within a reasonable time after the duress was removed; and they claim ratification because plaintiff accepted benefits under the contract, made payments required by it, received other property under it and acted in accordance with its terms. We find that these contentions must be sustained.

Plaintiff and Mr. Weisert were married in 1909. At that time Mr Weisert had four children, the youngest being about fifteen; and plaintiff had a daughter, nine. Plaintiff was nineteen years younger than Mr. Weisert. They made an ante-nuptial agreement which provided that plaintiff (if she survived him) should receive one-fifth of all his property, excepting real estate and personal property belonging to and used in connection with his tobacco business, and that she relinquished all other rights in his estate. The family always understood that the tobacco business would go to the oldest son, Albert Weisert, Jr.; and when he died in 1935 it was agreed that it would go to his family. Mr. Weisert thereafter made a will so providing. Two other children of Albert Weisert, Sr. died prior to 1935 without issue. Mr. Weisert was kind and generous with his family. He gave each of his children a home and also gave a home to plaintiff's daughter, Mrs. Adeline O'Brien, when she was...