Opinion
November 20, 1931.
1. PAYMENT: Presumption: Lapse of Time. A presumption of payment, as a matter of fact, will arise from long delay and a great lapse of time in the presentation of the claim.
2. ____: ____: ____: Other Facts: Probabilities. In the trial of a claim against the estate of a decedent, the administrator may show circumstances and conditions which carry a reasonable conviction that payment has been made. The lapse of time and the death of the main witness justify the jury in drawing conclusions from probabilities, when the positive fact is not susceptible of more direct proof.
3. ____: ____: ____: ____: Suppression of Proof. Kackley, an attorney, had office privileges in the law offices of the deceased attorney, who prosecuted many cases brought to the office by Kackley. In 1915 Kackley was employed by the plaintiff to prosecute a suit for damages against a railroad on a contingent fee of fifty per cent of the amount recovered. Kackley brought this suit to decedent, and it was prosecuted by him, decedent and another attorney. In 1916 judgment in favor of plaintiff for $7,000 was obtained, which on appeal was reduced to $4,000. Thereafter plaintiff went to France as a soldier and on his return in 1919 notified Kackley of his address, and communicated with him about settling the judgment. He was in need of money, and decedent advanced him $700. In 1920 decedent settled the judgment for $4983.35, and paid the costs and expenses of the litigation, and paid Kackley and the other attorney their fees. It had been the practice of deceased to file cancelled checks and receipts in the file of a settled case. Decedent died in 1922, and within two weeks after his death Kackley took from his office all the files and papers in the case. About a year later Kackley referred plaintiff to a fourth lawyer, who brought suit for plaintiff against decedent's estate, for one-half of the judgment collected. Kackley kept the files and papers at his home for two years and until he was ordered by subpoena duces tecum to produce them in court. When the file was produced it contained no evidence of payment to either Kackley or plaintiff. Decedent's administrator, who was his son, did not know that the file had been removed from his father's office until after plaintiff's claim was filed. Plaintiff remained silent for three years after decedent had collected the judgment against the railroad and had paid the costs and expenses of the suit and the fees of his associate attorneys, and remained silent for a year after decedent's death. Held, that these facts and circumstances constitute substantial evidence that plaintiff's claim had been paid, and authorized the jury to return a verdict for the administrator, and the Court of Appeals in ruling otherwise contravened the decisions of this court in Baker v. Stonebreaker's Administrator, 36 Mo. 211, 214, and in other cases.
4. TRIAL: Substantial Evidence. An issue supported by substantial evidence in an action at law should be submitted to the jury, and a contrary ruling of the Court of Appeals conflicts with the decisions of this court.
Certiorari to Kansas City Court of Appeals.
OPINION QUASHED.
Clif Langsdale for relator.
(1) Defendant made a case for the jury upon the issue of payment. West v. Bryson, 13 S.W. 96; McFaul v. Haley, 65 S.W. 998; Linderman v. Carmin, 164 S.W. 617; Baker v. Stonebreaker, 36 Mo. 338; Craddock v. Jackson, 223 S.W. 929; Parish v. Casner, 282 S.W. 409; Massey v. Young, 73 Mo. 273; Ross v. Mineral Land Co., 62 S.W. 287; Dietrich v. Brewery Ice Co., 286 S.W. 43; Burton v. Maupin, 281 S.W. 90. (2) The Court of Appeals in ruling that defendant's Instruction 4 was erroneously given, is in conflict with controlling decisions of the Supreme Court: West v. Bryson, 99 Mo. 684.
John D. Wendorff for respondents.
(1) The opinion of the Kansas City Court of Appeals herein is not in conflict with any former controlling opinion of this court and, therefore, this court will not quash the record in this proceeding even though this court may be of the opinion that said opinion in other respects may be erroneous. Mo. Constitution, Article VI, Amended 1884, sec. 8; State ex rel. Koenen v. Daues, 288 S.W. 16; State ex rel. Bradley v. Trimble, 287 S.W. 924; State ex rel. Security Ins. Co. v. Trimble, 300 S.W. 813; State ex rel. Presnell v. Cox, 250 S.W. 377; State ex rel. Fichtner v. Haid, 22 S.W.2d 1048; State ex rel. Shaw v. Trimble, 250 S.W. 387; State ex rel. Ins. Co. v. Trimble, 20 S.W.2d 48, 51; State ex rel. Automobile Co. v. Daues, 19 S.W.2d 703; State ex rel. Noe v. Cox, 19 S.W.2d 597; State ex rel. School District v. Cox, 18 S.W.2d 61. (2) The Court of Appeals held that relator, by admitting in his answer that his testator collected the money, assumed the burden of proving payment to Rhoades of his share of the judgment, but the Court of Appeals found from the evidence that relator failed to prove payment to Rhoades of his share of the judgment and, therefore, plaintiff's requested peremptory instruction should have been given. Relator devoted six pages of his brief to an attempt to convince this court that the Court of Appeals was wrong in finding that the evidence did not show that Elijah Robinson had paid Rhoades his part of the judgment, but makes no attempt to show that the law announced by the Court of Appeals, viz.: That since defendant admitted collecting plaintiff's money and thereby assumed the burden of proving payment to him, but having failed to prove payment to plaintiff that plaintiff was entitled to a peremptory instruction, contravened any prior controlling decision of this court. The question before this court now is, not what the Court of Appeals should have found the evidence showed, but whether the law announced upon the facts as found by the Court of Appeals contravened any prior controlling decision of this court based upon the same, or similar, facts stated. Relator quotes from West v. Bryson, 13 S.W. 96, to the effect that it was not necessary that payment should be positively shown but might be presumed from lapse of years, etc., and he quotes from McFaul v. Haley, 65 S.W. 998, to the effect that an executor can defeat a claim against an estate by proving it has been paid, or for any reason it has ceased to be a valid demand against the estate, and that in the trial this may be proven by circumstantial evidence. To the same effect is Baker v. Stonebreaker, 36 Mo. 338. Relator also quotes from Craddock v. Jackson, 223 S.W. 929, to the effect that, "before the plaintiff can recover, the evidence must be so clear and strong as to satisfy the conscience of the court of the truth of plaintiff's allegations beyond reasonable doubt." That is just what the Court of Appeals does find from the evidence in this case, that is, it finds from the evidence that since relator admitted receiving the money, the law places the burden upon relator of proving payment to Rhoades of his share of the money by Judge Robinson, and then the court finds from the evidence that relator failed to prove payment by Elijah Robinson to Rhoades of his share of the money. Relator attempts to convince this court, not that the law announced by the Court of Appeals on the facts stated contravenes any controlling opinion of this court, but that the finding of the Court of Appeals from the evidence that Judge Elijah Robinson did not pay Rhoades his portion of the money is wrong. Relator is clearly laboring under the misapprehension that the province of this court is to correct the findings of fact by the Court of Appeals from the evidence, and is not limited and confined to those cases where general principles of law are announced by the Court of Appeals, contrary to the last previous announcement of this court upon the same or similar state of facts. State ex rel. Ins. Co. v. Trimble, 20 S.W.2d 48; State ex rel. Kansas City v. Trimble, 20 S.W.2d 18.
This came to me on reassignment. Certiorari to quash an opinion of the Kansas City Court of Appeals in Rhoades v. Robinson, Administrator of the Estate of Elijah Robinson, Deceased, (No. 16, 657). The facts follow:
Claude M. Kackley, an attorney, had office privileges in the law offices of Judge Elijah Robinson in Kansas City, Missouri. The judge prosecuted many of the cases brought to the office by Kackley. In 1915 Kackley was employed by Jesse C. Rhoades, on a contingent fee of fifty per cent of the amount recovered, to prosecute a suit for damages against the Chicago-Great Western Railroad Company for malicious prosecution. He brought this case to Judge Robinson. The suit was prosecuted by Judge Robinson, Claude M. Kackley and John J. Hess, an attorney of Council Bluffs, Iowa, who defended Rhoades in the criminal case alleged to have been instigated by said railroad. Kackley agreed to an equal division of the fee among the three attorneys. The case was tried and on June 15, 1916, Rhoades had judgment against the railroad company for $7,000. Thereafter Rhoades went to France with the American Expeditionary Forces. He returned to this country, and on January 23, 1919, sent a telegram from Delta, Iowa, to Kackley in Kansas City, Missouri, as follows:
"Send any communication to Delta, Iowa. Jesse Rhoades."
Thereafter, and March 11, 1919, he wrote a letter from Council Bluffs, Iowa, to Kackley in Kansas City, as follows:
"Dear Mr. Kackley:
"In answer to your letter of Feb. 28, I would say that I am not very anxious to sell judgment but it might not hurt anything for you to ask the party in Richmond what they are willing to pay me for my interest in it and if it is favorable I might consider selling. Get them to make an offer and then I will let you know what I think about it.
"I returned to work the 3rd of this month (Jan. 1919) and it seems natural to get back into harness again after being out of it for almost two years.
"I would like to come to K.C. and spend a few days with you but do not expect that I will be able to for three or four months as I feel that I had ought to work a while before I go visiting any more.
"I am feeling good at present but there are times when my lungs cause me considerable but I think that it will wear off in time and I will be in as good condition as ever. Well Kackley as it is after my usual bed time I think I had better close for this time and hit the shucks or I will not be able to do my work.
"Your friend, "JESSE RHOADES.
"159 Graham Ave., Council Bluffs, Iowa."
Thereafter, and on June 25, 1919, Judge Robinson advanced to Rhoades $700. This was secured by Rhoades assigning to Judge Robinson his interest in the judgment.
On appeal the judgment of the circuit court in favor of Rhoades was affirmed for $4,000, and on July 31, 1920, a draft in payment of the judgment amounting to $4983.35 was delivered to Judge Robinson, who entered satisfaction on the record. Thereupon Judge Robinson notified Hess by letter of the collection of the judgment and requested him to come to Kansas City for distribution of the money. It was shown by letter from Hess to the administrator, admitted in evidence without objection, that Hess came to Kansas City, and on August 13, 1920, Judge Robinson paid to Hess his fee, and at the same time paid Kackley his fee. The Judge died in September, 1922. It had been his practice to place cancelled checks and receipts in cases in the file of the case. Within two weeks after his death, Kackley took from the office of Judge Robinson all of the files and papers in the case of Rhoades v. Railroad. Although he was interested in many cases tried by Judge Robinson, he only removed from the office the file in that case. About a year thereafter Kackley referred Rhoades to an attorney who filed this claim in the probate court against the estate of Judge Robinson. The administrator, who was the son of Judge Robinson, did not know these files had been taken from the office. In the meantime he, as administrator, obtained judgment against Kackley for $1,000. Kackley kept the files and papers at his home for two years and until he was ordered by subpoena duces tecum to produce them in the probate court on the hearing of this claim. On a trial in said court the claim was denied. Rhoades appealed. On trial in the circuit court before a jury, the claim was again denied. The Kansas City Court of Appeals reversed the judgment and remanded the cause for certain errors. [ 6 S.W.2d 1007.] On a re-trial in the circuit court before a jury, the claim was again denied. The Kansas City Court of Appeals reversed the judgment and remanded the cause. It is the opinion of said court on that submission which is here for review.
In the circuit court the administrator by answer admitted that Judge Robinson collected the judgment and satisfied the record. Further answering, he alleged the employment of Kackley by Rhoades, and the engagement of Judge Robinson and Hess as attorneys in the case, the loan of $700 to Rhoades by Judge Robinson, the payment by Judge Robinson to Kackley, Hess and Rhoades of all sums of money due them from the money collected on the judgment. Further answering, he alleged that after the death of Judge Robinson, Rhoades and Kackley connived and conspired together to cheat and defraud the estate by setting up this claim, in furtherance of which Kackley took from the office said files.
At the trial plaintiff testified and rested his case. Kackley and the administrator testified as witnesses for defendant. The court instructed the jury that the burden was on defendant to show payment. The opinion ruled error on the admission of evidence, the giving of an instruction requested by defendant, the refusal of instructions requested by plaintiff, and also ruled there was no substantial evidence tending to show payment.
Relator (defendant) does not controvert the facts as found in the opinion, but contends that the application of the law by respondents to said facts is in conflict with certain decisions of this court.
In Baker v. Stonebreaker's Administrators, 36 Mo. 211, l.c. 214, 216, we said:
"A presumption of payment, as a matter of fact, may arise from a great lapse of time, falling short of the full period prescribed by statute as a ground for a conclusive or a disputable presumption of law, taken together with other additional circumstances tending to show payment, as furnishing circumstantial and presumptive evidence and a basis of fact proved, from which a jury may be warranted in inferring the fact of payment . . . It is well settled also, that when there is some evidence of this character which is competent to go to the jury, it is a question of fact for the jury to decide. . . . The effect of lapse of time alone will be in proportion to the number of years elapsed, and the force of other circumstances that may be necessary must be measured on a diminishing scale; and as the full period approaches, a proportionably less weight of additional evidence must be taken as sufficient."
And in McFaul v. Haley, 65 S.W. 995, l.c. 998, we also said:
"But whilst the probate court, or the circuit court on appeal, cannot go behind the judgment to inquire into the merits of the cause of action, yet the executor may defeat the claim if he can establish that it has been paid, or for any cause since its rendition has ceased to subsist as a valid demand. And in a trial of that issue he is not limited to proof of a positive act of payment, but he may show, if he can, circumstances and conditions from which the probabilities of payment are such as carry reasonable conviction that the judgment has been satisfied. The law adjusts itself to the circumstances of the case. The lapse of time, the death of the main witness, and perhaps other witnesses, justify the triers of the fact in drawing conclusions from probabilities when the positive fact is not susceptible of more direct proof."
Now, the facts as found in the opinion disclose that the costs and expenses of the litigation and the attorneys' fees were promptly paid by Robinson; that it was his practice to place cancelled checks and receipts in cases in the file of the case; that plaintiff, after returning from France, notified Kackley of his return and where he was located; that he was afterwards in communication with Kackley about the judgment; that plaintiff was in need of money; that he remained silent for three years after Robinson had paid said costs, expenses and attorneys' fees; that he remained silent for one year after the death of Robinson; that Kackley within two weeks after the death of Robinson removed the file in the case from the office of Robinson; that when the file was produced in the probate court it contained no evidence of payment to Kackley or plaintiff; that the administrator did not know the file had been removed from the office until after this claim was filed in the probate court, and that Kackley assisted the plaintiff in procuring the services of an attorney to file the claim.
The foregoing facts and circumstances clearly constitute substantial evidence of payment within the rule announced in the decisions of this court above mentioned. Respondents' holding to the contrary is therefore in conflict with them.
The opinion is also in conflict with decisions of this court holding that an issue supported by substantial evidence should be submitted to the jury.
Other questions ruled are so related to the question considered that we think the opinion should be quashed. It is so ordered. All concur.