Borchers v. Barckers
138 S.W. 555
Mo. Ct. App.
1911
Check Treatment
REYNOLDS, P. J.

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 *271testify at this trial and Mr. Loevy, who was present as notary and took the acknowledgment, testified as to the fact of the acknowledgment and the acts of the father. The court again tried this case with the aid of a jury. As we held before, this is really a case of interpleader and distinctly one that should have been,tried as in equity. In such cases it is not error and is within the power of the court, to take the opinion of the jury on any issue of fact, but he is not bound by the finding the jury may make. [Blood v. Sovereign Camp Woodmen of the World, 140 Mo. App. 526, 120 S. W. 700.] It was also within the power of the court, by instructions which it gave, to direct.a verdict, which, in effect, was what was done here, for at the conclusion of all the testimony, the court, at the instance of plaintiff, gave two instructions. First, that there is no evidence in the case that at the time John Borchers signed his name to the assignment of the policy read in evidence, he did not have legal capacity to sign the, same. Second, that there is no evidence in this case that at the time John Borchers signed his-name to the assignment of the policy read in evidence, that he did so through the undue and improper influence of Henry N. Barck-ers, one of the claimants herein, or any other person. Upon the court giving these instructions, plaintiff took a nonsuit with leave to move to set it aside, and the jury was thereupon discharged from further consideration of the case, plaintiff excepting to this. Treating this as a suit in equity this was an entirely novel and unwarranted proceeding. All that should have been done was to have -dismissed plaintiff’s suit, and the fund being before the court, as in interpleader, to have disposed of that fund. But upon plaintiff taking a nonsuit with leave, the court entered up judgment -that plaintiff take nothing by his suit and further adjudged that the sum of $650.30, in 't]ie hands of the Missouri Lincoln Trust Company,- was at the time this suit was brought, the property of defend*272ant Henry N. Barckers, and it ’appearing to the court that pending the termination of this suit that sum had been paid by the Trust Company, under execution herein issued, to the sheriff and turned over by the sheriff on or about June 29,1909, to plaintiff as administrator, the court ordered that that sum, with interest thereon at the rate of six per cent per annum from June 29, 1908, to date, being the sum of $72.81 and aggregating $723, “be paid by plaintiff administrator to the said Henry N. Barckers or his attorney of record, and it is further considered and adjudged that defendant, Missouri Lincoln Trust Company, go hence without day, and that it and said defendant Barckers recover their costs herein lawfully expended, said costs to be faxed against and paid out of said estate.” .A motion for new trial was interposed as also one in arrest, both of which were overruled, exceptions saved and plaintiff perfected appeal to this court. It is to be said in explanation of this judgment of the court, that when the case was formerly appealed, defendant was unable to give bond, whereupon execution issued and it was under that that the Trust Company had paid the money over to the sheriff and the sheriff had paid it to plaintiff administrator. These facts were conceded. As before remarked the facts of the case are fully set out in the report, 143 Mo. App. 72.

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.

*273Taking these np in their order and following the theory of counsel for appellant, that this is an action at law, we find no error in the action of the court in giving the instructions referred to. There was no evidence in the case on this trial, of either mental incapacity, nor of the exercise of undue influence. As to this latter, there was no more, if as much introduced on that issue by the plaintiff at this trial than given at the former one, and we then held that there was no' evidence of undue influence in the record.

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 *274Mr. Loevy’s capacity as a witness when this case was here before and it is a closed point in this case.

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 *275the hands of plaintiff pending the suit, was subject to the disposal of the court. There was nothing for the jury to pass upon; one or the other party was entitled to it. As the court held that plaintiff was not entitled to it, then beyond all question defendant was; for neither the Trust Company nor the insurance company, nor any one else, made any claim to it. It was in the custody of the plaintiff, as administrator, and had come into his hands pending this suit and the court found he was not entitled to it. There was no question whatever as to its amount or as to when it had been recived by plaintiff, and the court, with perfect propriety, added to the principal, interest from the date it went to plaintiff, rendered judgment for the amount and directed its payment to defendants. There was no error whatever in this.

The judgment of the circuit court is affirmed.

Nortoni and Caulfield, JJ., concur.