96 Mo. 85 | Mo. | 1888
In February, 1883, Mrs. Mary or May Bowling died in Kansas City possessed of real estate and personal property of the value of about twenty-five thousand dollars. The plaintiff, a practicing physician in that city, for several years prior and up to her death was her regular physician and medical attendant. Soon after her death the defendant, who was public administrator of Jackson county, took charge of her estate for administration, and thereafter, at the May term, 1883, of the probate court of said county, the plaintiff presented to said court, and procured to be allowed as demands against said estate, three promissory notes purporting to have been executed to him by the said Mary Bowling, one dated July 7, 1882, payable one year after date, for twelve thousand dollars, with twelve per cent, interest, one dated September 5, 1882, payable one year after date, for nine thousand dollars, with ten per cent.
The orders allowing these notes as demands against said estate were afterwards set aside by the probate court, and the plaintiff instituted this suit on said notes against defendant, as administrator of the estate of the said Mary Dowling, in the circuit court of Jackson county, at Kansas City, from which a change of venue was taken to the circuit court of Lafayette county, where a trial was had, resulting in a verdict and judgment for defendant, from which plaintiff appeals. A reversal of the judgment is urged, on the ground that the trial court admitted illegal evidence for the defendant, rejected legal and competent evidence for the plaintiff,' gave improper instructions for the defendant, and refused proper instructions for the plaintiff.
The petition contained three counts, one on each of said promissory notes, and each containing the allegation that on the date thereof the said Mary Dowling, for value received, executed and delivered the promissory note therein counted upon. The answer of the defendant contained a general denial of each and every allegation of the petition, or any knowledge or information thereof sufficient to form a belief, and an averment, in substance, that, from about the year 1875 to the time of her death, the plaintiff was the regular physician and medical attendant of the said Mary Dowling, and during all that period of time had the complete confidence and trust of the said Dowling in all things, and prayed the court to require of the plaintiff full proof that the said Mary Dowling executed said'notes, and the consideration upon -which they were based, if any. The reply admitted that plaintiff was the reguiar physician and medical attendant of Mary Dowling during the period of time specified in defendant’s answer and denied the other allegations of the answer.
In the case last mentioned, the question wras elaborately discussed on principle and authority by Sherwood, J., in a dissenting opinion in which Black, J., concurred. After a careful review of the authorities and due consideration of the argument pro and con., the writer hereof has arrived at the same conclusion reached by the learned judge in that opinion, i. e., that the declarations of a party to a suit, made in a deposition taken by his adversary, may be read in evidence against
In harmony with this principle and with each other are the cases of Kritzer v. Smith, 21 Mo. 296 ; Charleson v. Hunt, 27 Mo. 34; State ex rel. v. Bank, 80 Mo. 626, and Pomeroy v. Benton, supra. The rule of evidence that makes these declarations admissible has not been trenched upon by the statute, nor can the deduction that it was so intended be fairly deduced from the terms used therein. If any mischief is likely to flow from its application to circumstances like those of the
II. The administrator Nolan was examined as a witness, and testified that he took charge of the estate soon after Mrs. Dowling’s death, that he made every effort to discover her estate, and made an inventory of all the personal property and money and notes belonging to her estate that he could find after diligent search and inquiry. He identified a paper then shown him as a true inventory thereof, and that it contained a list of all the personal property he could find belonging to her estate. Over the objections of the plaintiff, for the purpose of showing what personal property he succeeded in finding, the paper was permitted to be read to the jury, after which he was examined further and cross-examined. The plaintiff claimed that, within eight months before Mrs. Dowling’s death, he loaned her over twenty thousand dollars in money, that went into the consideration of the notes sued on. A vital issue in the case was whether or not she received that money.* A pertinent inquiry bearing on that issue was, if she received it, what did she do with it? If the administrator could show that she had never used any such sum of money, from the time she was alleged to have received it until her death, and neither the money nor anything representing it could be found among her assets, it was evidence tending to prove that she never received it. It was legitimate, then, to show what those assets were so far as they could be discovered. The administrator knew what they were, he gathered them
III. A series of questions and answers in the depositions of T. J. Green and P. G. Baird were objected to en masse without any specific ground of objection being assigned to any or all of them. The action of the court in overruling these objections will not be reviewed. Parsons v. Railroad, 94 Mo. 286.
IV. On behalf of the plaintiff, the court gave three instructions, one on each count in the petition, instructing the jury to find for the plaintiff the amounts of the notes and interest sued on if they found from the evidence that plaintiff loaned Mary Dowling the sums of money therein mentioned and in consideration thereof she executed said promissory notes, and a fourth, that it did not devolve upon the plaintiff to show what disposition was made by her of the money, that it was only necessary for them to find that she received the • money from the plaintiff as the consideration of the notes sued on.
On its own motion the court gave the following instruction: “The court instructs the jury that if they believe from the evidence that May, or Mary Dowling, deceased, signed and delivered the notes sued on to plaintiff, then the said notes import a consideration on their face, but not conclusively .so ; and if the jury further believe from the evidence that, at the dates or times of delivery of said notes, the plaintiff was the family or personal physician of said Mary Dowling and her trusted adviser in whom she had confidence, then
In behalf of defendant, among others not necessary to notice, the court gave the following instruction: “1. The jury cannot find a verdict for the plaintiff on either note, unless they are satisfied from the evidence of three things : (a) That the decedent signed the same with full knowledge of the character of the instrument; (b) that she delivered the same; (c) that the same was based on a valuable consideration, actually received by her. And the jury are instructed that fondness or esteem are not a valuable consideration. In the absence of either of these three things, the verdict must be for the defendant.”
The court refused to give five instructions asked by plaintiff, three of which, one on each count in the petition, were to the effect, that if the jury found that Mary Dowling executed the notes sued on, the burden of proving a want of consideration devolved upon the defendant, and unless they found from a preponderance. of the evidence that there was no consideration paid by plaintiff for the notes they will find for the plaintiff as to each of them, and one to the effect that the failure of plaintiff to list and return all his property to the assessor for taxation would not vitiate the notes if Mrs. Dowling executed them. The other is as follows :
“ 6. The court instructs the jury that it is not sufficient in this case to invalidate said notes, or either of them, upon the ground of undue influence, by simply showing that the relations of physician and patient, and friendship and confidence existed between plaintiff and said Mary Dowling, but defendant must show by a preponderance of evidence to the satisfaction of the jury,
The issue tendered in the petition was that the decedent, for a valuable consideration, executed the notes sued on. The answer by general denial joined these issues and further stated a confidential relation between the maker and payee and required strict proof ■of the execution and consideration. Ordinarily, in ■actions on promissory notes, the execution and promise is alone counted upon. In this case, however, the plaintiff not only averred the execution of the notes, but that the decedent executed them for value, and these were the issues upon which the case was tried. The evidence of the plaintiff tended to prove that Mary Dowling exe-cuted the notes and that the consideration thereof was money loaned in the amounts and at the dates therein respectively stated. The evidence of the defendant tended to prove that she did not execute the notes and never received any consideration therefor. There was no question as to what the consideration was ; if decedent received any, it was money loaned, or its equivalent, .and treated as such by both parties.
The burden of proving that she executed the notes and received the consideration alleged was on the plaintiff, and as there was conflicting evidence on both issues, it remained on him on the whole evidence to satisfy the jury, by a preponderance thereof, that decedent executed the notes for that valuable consideration. We find no ■error in the action of the circuit court in refusing to instruct the jury that if they found the decedent executed the notes, the burden of proof was upon the ■defendant to satisfy the jury by a orenonderance of the
The. refused instruction, to the effect that plaintiff ’ s failure to return all his property to the assessor would not vitiate the notes sued on, was unnecessary to be given to an intelligent jury, was obnoxious as a comment on the evidence, and there was no error in refusing it.
The court, in the instruction given on its own motion, and in number one, given for the defendant,, in effect told the jury, that in order to find for plaintiff they must find from the evidence that Mrs. Dowling, knowing at the time the character of the instruments, signed and delivered the notes sued on, and actually received a valuable consideration therefor, and if they find that she signed and delivered the notes, then they are to be presumed to have such consideration, but not conclusively, and if they find that, at the time of their execntion, the plaintiff was the physician of said Mary Dowling, and her trusted adviser in whom she had confidence, then it devolved on the plaintiff to show that she did receive the alleged consideration therefor and that no undue advantage was taken of her. These instructions, while they may be subject to some verbal criticism, declared the law of the case in such terms as that the jury could not have failed to make a proper application of the correct legal principles they contained to the evidence in the case, by which they are well sustained. The .uncontroverted evidence was that, at the
To hold, as the circuit court did, that, under these circumstances, it was incumbent on the plaintiff to show
It is for the physician to show that the transaction in which he received valuable securities from his patient .during the existence of this intimate and confidential relation was fair, and that no advantage was taken of that relation, in the teeth of a presumption to the contrary growing out of the fact of its existence. And unless he does so show the courts will not lend their assistance to enforce such securities against the patient, although he or his representative may not show the actual exercise of undue influence in procuring them-The action of the court in giving and refusing the instructions set out was in harmony with this principle»
Y. The depositions of French and Holman contained no evidence bearing materially upon any controverted point in the case, direct or collateral, and the refusal of the court to permit them to be read could not in any manner have affected the result.
The verdict on the evidence was inevitable, the judgment is for the right party, ought to be and is affirmed.