158 Mo. App. 267 | Mo. Ct. App. | 1911
This is the second appeal of this case to this court; as it was here before and is reported 143 Mo. App. 72, it was on the appeal of defendant Henry N. Barckers; now it is here on the appeal of plaintiff. It was reversed by this court for error in an instruction on undue influence, this court holding that there was no evidence of undue influence in the case. The facts and issues are so fully set out in the report of the case when before us on the first appeal that it is unnecessary to repeat them. The cause was then remanded because it was thought by the court that on careful examination of the testimony, there was evidence, although slight, tending to show a weakened mental condition in deceased and 'that this question of mental capacity should have been submitted to the jury under the facts then in evidence. On this second trial, the evidence of one of the witnesses for plaintiff, Dr. Martin, a physician, which on the first trial we especially referred to as tending to prove lack of mental capacity on the day the assignment of the policy was made, which was the day the deceased died and when he had lapsed into a semiconscious condition, was not introduced. With that exception the testimony of the other witnesses was substantially as before, except that the testimony of the other witnesses, that of the sisters, daughters of the deceased, bearing on the mental capacity of their father, is hardly consistent with that given on the former trial, and certainly is no more persuasive. Neither lived with him; neither was present when he made the assignment; the doctor, who was there present, lid not
Counsel for appellant on this appeal assign these errors: First, that the court erred in giving defendant’s-peremptory 'instruction. Second, in- permitting the witness H. A. Loevy to testify. Third, the court erred in admitting in evidence the assignment for the reason that under the terms of the policy it had not received-the assent of the association. Fourth, error in excluding evidence offered by plaintiff. Fifth, that the case at bar was properly triable by a jury. Sixth, that the trial court erred in entering up judgment after having dismissed the jury, without submitting to the jury the right of plaintiff to recover.
In the second trial of the case, the evidence as to the lack of mental capacity was entirely lacking in probative force and was not even as strong as that formerly given. The strongest evidence, in fact the only evidence of the only absolutely disinterested witness, the physician, as to lack of mental capacity, which was present in the former trial was not here at all. It was chiefly on that evidence present that we then remanded the case. We have read all the evidence as now presented and have no hesitation in saying that it was not sufficient to warrant a jury in finding lack of mental capacity.
The second assignment of error as to the admission of the testimony of Mr. Loevy is without any merit whatever. He was neither a party to the assignment nor acting as agent for any party in its procurement; he was present, not as agent for defendants but as a notary public; he took the acknowledgment of John Borchers, Sr., to the assignment, witnessed it and saw John Borchers deliver it to his son Henry. It is true that this assignment is in issue and its validity a question in the case, but it is not true that Mr. Loevy was a party to the negotiation of the assignment in such a sense or in such a capacity, as to disqualify him as a witness under the provisions of 6354, Revised Statutes 1909; if he was the agent of any one, he was the agent of the deceased. We passed on the question of
The third proposition made, that in admitting in evidence the assignment for the reason that under the terms of the policy he had not received the assent of the association, was made when the case was first before ns and we then determined it adversely to plaintiff. Assent to the assignment was for the benefit of the insurance association; it waived that by paying the fund over to the Trust Company with the assent of plaintiff and consent of defendants. So that the insurance association, without claiming the benefit of this claim, when it paid the amount agreed to be due on the policy into the hands of the Trust Company, was. no longer concerned with that right of assent it had reserved. This point is held against appellant.'
We have examined fhe evidence to which our attention has been called by counsel for appellant and which it is claimed had been improperly excluded by the court. The specific question on which error to its exclusion is assigned is: “What did you hear your father talk about when you met 1 ’ ’ That was not only indefinite for lack of locating the conversation as to time and place but it was asked of a witness who had already gone over and over all the conversations which she claimed to have had with her’ father touching this matter. The other evidence in which this assignment applies was at most mere repetition of that given by the witnesses.
We have already disposed of the fifth error assigned. We do not think that this is a case triable by a jury. It was, no matter what its form, an inter-pleader and triable as in equity.
The sixth error assigned, as to entering up judgment after the court had dismissed the jury, without submitting to it the right of plaintiff to recover, is untenable. When plaintiff took a nonsuit or practically dismissed his suit, the fund which had come into
The judgment of the circuit court is affirmed.