author: HYDE, Presiding Judge.

text:
    Loyd F. HOWE, Plaintiff-Appellant, v. ST. LOUIS UNION TRUST COMPANY, a Corporation, Kenneth H. Eggers, Milton R. Wismar, Centrifugal & Mechanical Industries, Inc., a Corporation, Elmer O. Binder, James E. Bilderback, Parker W. Bigley, John McDermott, Wade R. Coon, Wilfred Widdows, and A. Lowell Morriss, Defendants-Respondents.
    No. 50935.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Opinion Modified on Court’s Own Motion and Motion for Rehearing or to Transfer to Court En Banc Denied Aug. 3, 1965.

      Eugene V. Krell, St. Louis, for appellant.
    R. H. McRoberts, Jr., St. Louis, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel, for respondents St. Louis Union Trust Co., Kenneth H. Eggers and Milton R. Wismar.
    Jerome F. Duggan, Sidney W. Horwitz, Dubinsky & Duggan, St. Louis, for respondents Centrifugal & Mechanical Industries, Inc., Elmer O. Binder, James E. Bil-derback, Parker W. Bigley, John McDer-mott, Wade R. Coon, Wilfred Widdows and A. Lowell Morris.
   HYDE, Presiding Judge.

Action in four counts for actual and punitive damages of $78,800.00, for wrongful discharge from employment and failure to furnish a service letter in compliance with Sec. 290.140 RSMo 1959, V.A.M.S. The Court directed a verdict for defendants on all counts at the close of plaintiff’s evidence and plaintiff has appealed from the judgment entered.

The individuals sued and their connection with the corporate defendants was as follows : Defendant Kenneth Eggers was Vice President, and Milton R. Wismar, Trust Officer of defendant St. Louis Union Trust Company, hereinafter called Trust Company. The other defendants were officers and employees of defendant Centrifugal & Mechanical Industries, Inc., hereinafter called Centrifugal: Elmer O. Binder, President; James E. Bilderback, Vice President; Parker W. Bigley, Executive Vice President; John McDermott, Purchasing Agent; Wade R. Coon, Engineer; Wilfred Wid-dows, Plant Superintendent. A. LoWell Morriss, lawyer for Centrifugal, was co-executor of the estate of Andrew F. Howe, deceased, along with Trust Company.

Count I of plaintiff’s petition alleged that the individual defendants, Binder, Bilder-back, Bigley, McDermott, Eggers, Wismar and Morriss, individually and collectively, maliciously and wilfully and with intent to prevent plaintiff from having employment with Centrifugal, induced Centrifugal to discharge plaintiff from his employment, thereby interfering with his contractual relations, to plaintiff’s damage. Though named in Count I, the prayer did not ask for a judgment against Centrifugal. Plaintiff sought $18,800.00 actual damages for loss of wages and $40,000.00 punitive damages.

Count II alleged that defendants, Centrifugal, Binder, Bilderback, Bigley, Mc-Dermott, Widdows, Coon, Trust Company, Eggers, Wismar and Morriss, maliciously and wilfully conspired to and did cause a severance of plaintiff’s employment with Centrifugal, thereby interfering with plaintiff’s potential advantage of employment during the administration of the probate estate of Andrew Francis Howe, and his participation in and knowledge of the operation of the corporation. Plaintiff sought judgment against the aforementioned defendants for $38,800.00 actual damages, which included the $18,800.00 for loss of wages sued for in Count I and $40,000.00 punitive damages.

Count III charged that defendants, Binder, Bilderback, Bigley, McDermott, Coon, Widdows and Morriss communicated injurious and false statements concerning plaintiff to the Trust Company, Eggers, Wismar and Centrifugal, causing plaintiff to lose his employment. Plaintiff sought actual damages against the individual defendants, exclusive of Eggers and Wismar, for said alleged injurious falsehood in the amount of $18,800.00.

Count IV alleged that Centrifugal and Binder, in the issuance of Centrifugal’s service letter to plaintiff on his demand, failed to comply with the Missouri statute relative to same, and failed to state the true cause of plaintiff’s discharge. Plaintiff claimed actual damages in the amount of $18,800.00 and punitive damages of $40,-000.00.

Plaintiff’s evidence consisted of his own testimony and portions of depositions of defendants offered as admissions. Plaintiff’s father, who died February 7, 1961, owned 43,181 shares of the 43,200 outstanding shares of the common stock of Centrifugal. (Plaintiff’s testimony showed that at the time of the trial these shares were not in his father’s estate, having been sold apparently during administration although still in the estate at the time of his discharge.) Plaintiff, who was 68 years of age at the time of the trial, was employed by his father as a wood pattern maker on August 10, 1959 and was paid $3.60 per hour. Prior to that time, plaintiff had been a wood pattern maker for the Caterpillar Tractor Company at Peoria, Illinois. Plaintiff said he had worked as a pattern maker for over fifty years. Plaintiff was discharged on May 19, 1961. After that time, patterns for Centrifugal were purchased from pattern manufacturers.

It appears from the depositions in evidence that after the death of plaintiff’s father, plaintiff wanted to take part in management of the company, and complained he was not being informed about “what was going on.” It was the view of the officers of Centrifugal that plaintiff “did not have management ability.” The executive committee of Centrifugal, consisting of the President and the two Vice Presidents, discussed the matter of plaintiff’s discharge at least twenty times because he was interfering with the employees, butting into directors’ meetings and making himself a general nuisance. The matter was brought to a conclusion when plaintiff during his vacation wanted to go to a trade show at Cleveland, Ohio, where Centrifugal had a booth. It appears that plaintiff’s expressed purpose was “to protect his interests,” saying “he intended to go into the booth and report to the trade that he was one of the heirs of Mr. Howe’s Estate and would at one time be operating the company.” The officers did not want him to go, considering that plaintiff was not familiar with the company’s work and not being a salesman he might damage its association with some of its prospects. Plaintiff did not go but was discharged soon afterwards. Other material facts will be stated in connection with our rulings.

Counts I, II and III are all for damages for wrongful discharge. Plaintiff suggests, as one theory of liability, interference with contractual relations, citing Prosser on Torts, 3rd Ed., 955 et seq., Chapter 26. However, this discussion mainly concerns inducing a person to break an existing contract of employment under the principles established by the leading case of Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749. See also Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976. The trouble with plaintiff’s case is that he had no definite contractual relations with Centrifugal; he neither alleged nor had any evidence of any employment contract for continuing service. It appears only that he was employed on an hourly wage basis. “ ‘The rule is well established in this state and elsewhere that in the absence of a contract for employment for a definite term or a contrary statutory provision, an employer may discharge an employee at any time, without cause or reason, or for any reason and, in such case, no action can be maintained for wrongful discharge. Culver v. Kurn, 354 Mo. 1158, 193 S.W.2d 602, 166 A.L.R. 644; Forsyth v. Board of Trustees of Park College, 240 Mo.App. 622, 212 S.W.2d 82; Bell v. Faulkner, Mo.App., 75 S.W.2d 612; Odell v. Humble Oil & Refining Co., 10 Cir., 201 F.2d 123.’ Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124.” Smith v. Arthur C. Baue Funeral Home, Mo.Sup., 370 S.W.2d 249, 252. See also Morsinkhoff v. DeLuxe Laundry & Dry Cleaning Co., Mo.App., 344 S.W.2d 639; Maddock v. Lewis, Mo.Sup., 386 S.W.2d 406, 411. Plaintiff says Count III is based on injurious falsehood communicated by the named officers and employees of Centrifugal to the executor of his father’s estate, the Trust Company and its officers, but the relief sought is damages for wrongful discharge. This could not state a cause of action, if his discharge was not wrongful because, having no contract for employment, plaintiff could have been discharged “at any time, without cause or reason or for any reason.” Furthermore, Trust Company was not his employer.

Although plaintiff says there was ample evidence to indicate that the defendants conspired to effect plaintiff’s discharge, he also says that “individually and collectively” defendants “committed malicious, wilful acts to his damage.” Acts he points out are that the executive committee discussed the matter of his discharge any time they were together, being at least 20 times; that President Binder at all times recommended discharge; that the Trust Company and its officers intended that plaintiff stay in the employ of Centrifugal but that the other defendants persuaded them he should be discharged; and that in answer to an interrogatory as to how defendants knew plaintiff was “incompetent, interfering, unnecessary employee and undesirable as an employee” (admitted in their answer as made to Trust Company) they said “by constant daily observation of plaintiff’s action as an employee.” Plaintiff states that such constant observation is at least an unlawful means to accomplish a lawful act, citing the definition of conspiracy in Royster v. Baker, Mo.Sup., 365 S.W.2d 496, 499. Our view of the evidence is that plaintiff’s discharge was a lawful act for the reasons hereinabove stated and that upon consideration of the whole record we must find no unlawful means was shown. The law of civil conspiracy is well stated in the Royster case; see also Gruenewaelder v. Wintermann, Mo.Sup., 360 S.W.2d 678, 687. An instructive case on the situation here is Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118, in which an action for wrongful discharge, claiming conspiracy, was brought by a college teacher whose employment was indeterminate. We held that the college violated no contract when it dismissed the teacher and therefore no cause of action was stated against it. We further held, as to the conspiracy claim against the individual defendants, that “the allegation^} that they conspired together do not authorize the plaintiff to maintain his action when he could not maintain it against one defendant, if sued alone. * * * [A] conspiracy of itself furnishes no cause of action, because from the mere forming of it no possible damages can accrue.” See also Maddock v. Lewis, Mo.Sup., 386 S.W.2d 406, 412. We consider these principles to be applicable to the facts of this case.

Plaintiff further claims error and asks for remand because of the court’s ruling as to the applicability of Sec. 491.010 RSMo 1959, V.A.M.S. Plaintiff testified that in August 1959, he left his employment as a wood pattern maker for the Caterpillar Tractor Company in Peoria, Illinois to go to work with Centrifugal. The transcript then shows the following:

“Q And did you move to St. Louis at that time?

“A I did.

“Q Was that at the request of your father ?

“MR. DUGGAN: I object for the reason that the prior testimony shows that the father is dead.

“THE COURT: Under the Dead Man’s Statute, you mean?

“MR. DUGGAN: Yes, your Honor.

“THE COURT: Objection will be sustained. Any contract, conversation or anything else relied upon between this party and the deceased part[y] are not admissible because one of them is dead.

“MR. KRELL: May it please the Court, Andrew Howe is not a party to this suit.

“THE COURT: I didn’t say he was a party. His estate is represented here by the St. Louis Union Trust Company and I said any conversation or agreements between the plaintiff and Mr. IJowe who is dead, under which he purports to claim under his father, is not admissible under the Dead Man’s Statute.”

There was no further offer or statement on the subject. Plaintiff made no offer of .proof and at that time did not claim any waiver of the statute, as he does now in his brief by saying his deposition had been taken. Thus plaintiff has not preserved anything for appellate review as to this ruling. See Pitha v. St. Louis Public Service Co., Mo.Sup., 273 S.W.2d 176, 179, and cases cited; Harper v. St. Joseph Lead Co., 361 Mo. 129, 233 S.W.2d 835, 841; Tomlinson v. Ellison, 104 Mo. 105, 114, 16 S.W. 201, 203; Norton v. Lynds, Mo.App., 24 S.W.2d 183, 186. Plaintiff’s claim, according to his counsel’s argument, seems to have been that there were statements of officers of Centrifugal that he was to be retained as an employee until his father’s estate was closed. Although that may have been intended, there was no evidence of a contract for any period. Even in his brief, plaintiff does not say he had any evidence of a contract. We, therefore, find no prejudicial error in the court’s ruling and hold that the court properly directed a verdict on Counts I, II and III.

As to Count IV, plaintiff’s claim is that he had substantial evidence to show the service letter furnished him did not state the true cause of his discharge and that he was entitled to a jury determination of that issue. Sec. 290.140 RSMo 1959, V.A.M.S., requires a letter “setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service.”

The service letter signed by defendant Binder as President of Centrifugal was as follows: “You were employed by Centrifugal and Mechanical Industries, Inc. in the capacity of a pattern maker, making new patterns and repairing old ones. Your period of employment was from August 10, 1959 to May 19, 1961. The reason for discontinuing your employment was because of lack of work, which you well know, and for the reason that your services as a Pattern Maker were no longer required.”

Plaintiff’s petition did not state what he claimed to be the true reason for his discharge. See Stebbins v. Mart Drug Co., Mo.App., 344 S.W.2d 302, 304. However, defendants did not raise any question as to the sufficiency of the petition. The principal reason suggested in plaintiff’s brief is because of his expressed intention to go to the trade show at Cleveland while he was on vacation. His discharge was immediately after the controversy over that but, as noted, in their answer to Count III the individual defendants, who were officers and employees of Centrifugal, admitted they communicated to the Trust Company and Centrifugal “that plaintiff was incompetent, interfering, an unnecessary employee, and undesirable as an employee,” as alleged by plaintiff. In answer to another interrogatory as to reasons for not being satisfied with plaintiff’s services, it was stated: “We could not use a pattern maker any longer nor could we use Loyd F. Howe in any other capacity.” Both these answers were put in evidence by plaintiff. Plaintiff cites Gerharter v. Mitchellhill Seed Co., Mo.App., 157 S.W.2d 577, 580, but in that case the defendant did not claim that a good service letter had been furnished; and obviously the letter involved in that case did not comply with Sec. 290.140 because it failed to state “the nature and character of service rendered,” which is not true in this case. In the Gerharter case, as here, there was no proof of actual damages but the court found the evidence sufficient to authorize submission of the issue of punitive damages, because of accusations of dishonesty. There were no such accusations in this case but “a discharged employee is entitled to recover nominal actual damages as a result of a violation of the statute.” Cook v. Mid-Continent Petroleum Corp., Mo.App., 193 S.W.2d 66, 69.

Plaintiff suggests that defendants’ statement about “constant daily observation” of him means “looking for an excuse to effect plaintiff’s discharge one way or another.” However, as we have held, defendants had the right to discharge plaintiff without any excuse and the real issue on Count IV is whether there was compliance with Sec. 290.140 in stating “for what cause” plaintiff “quit such service.” Roberts v. Emerson Electric Mfg. Co., Mo.Sup., 338 S.W.2d 62. In this connection, plaintiff cites Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980, where the reason given was: “[Y]ou failed to perform your duties in a satisfactory manner.” In that case, plaintiff actually was discharged on a charge of dishonesty, which she had evidence to prove was false, but that was not the reason stated in the service letter. The court held there was substantial evidence to show that the true cause of the dismissal was that the company manager disliked plaintiff and had replaced temporarily the manager of the restaurant where she was employed for the specific purpose of “getting rid” of plaintiff. Plaintiff’s evidence showed that this was done by “trumping-up charges which, if true, would justify her dismissal,” because based on a claim of dishonesty, and it was held this authorized punitive damages. Plaintiff also cites Williams v. Kansas City Transit, Inc., Mo.Sup., 339 S.W.2d 792, 796, in which there was a directed verdict for defendant at the close of the plaintiff’s case, affirmed by this court. Plaintiff therein claimed the reason given in his service letter (belief concerning misappropriation based on investigation) was false and also sued for libel. The Williams case holds a requested service letter is a qualifiedly privileged communication; and states: “[I]f a discharged employee demands a service letter, then ‘truth must out’, and the employee can accept the consequences.”

Our view of the evidence is that it presents a question of whether plaintiff was discharged because Centrifugal decided to discontinue pattern making or whether pattern making was discontinued because Centrifugal decided to discharge plaintiff. There was evidence to support a finding that Centrifugal did decide to discontinue pattern making because plaintiff was not satisfied to do that work; and it does not appear that there was anyone else available to do it. There was also evidence to support a finding that the real reason for plaintiff’s discharge was that the officers of Centrifugal considered him “incompetent, interfering, an unnecessary employee and undesirable as an employee,” for any purpose. President Binder said plaintiff “didn’t want to do the work” of a pattern maker but wanted to be his assistant; that he told plaintiff he would either have to do the work of a pattern maker or he would have to discharge him. Binder said, “My recommendation at all times was to discharge.” Vice President Bilderback said: “Our reason for recommending his discharge was you couldn’t reason with him.” He also said the matter of discharging plaintiff was discussed at every directors’ meeting and that plaintiff “made himself a general nuisance.” Vice President Bigley said: “I do not think the quality of Mr. Howe’s work entered into it in any way in his discharge. * * * [T]he chief problem, you might say, was insubordination and lack of, wholeheartedly lack of cooperation to give us time to iron this thing out to help him.” Our decisions hold “that in a civil action for damages against the corporation under the remedial part of the statute (for which damages the defaulting corporation agent is not liable), the corporation is liable for having failed ‘to arm the employe with a letter stating the true cause of his discharge,’ Cheek v. Prudential Ins. Co., supra [Mo.], 192 S.W. [387] 391 [L.R.A.1918A, 166].” Roberts v. Emerson Electric Mfg. Co., Mo.Sup., 338 S.W.2d 62, 72; see also 31 Am.Jur. 950, Labor, Sec. 758 ; 57 A.L.R. 1073, annotation. Therefore, we hold plaintiff made a submissible case on Count IV.

The judgment is affirmed as to Counts I, II and III. As to Count IV the judgment in favor of defendant Elmer O. Binder is affirmed but reversed and remanded for retrial on Count IV against defendant Centrifugal and Mechanical Industries, Inc.

All concur.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Dorothy Delores PASTERNAK, Plaintiff-Respondent, v. Frank MASHAK and Frank Mashak, Executor of the Last Will and Testament of Elizabeth Milanko, Deceased, Defendants-Appellants.
    No. 32125.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.

      Frank Mashak, St. Louis, for defendants-appellants.
    Dubinsky & Duggan, Sidney W. Hor-witz, St. Louis, Ralph E. Suddes, Mattoon, Ill., for plaintiff-respondent.
   DOERNER, Commissioner.

This is an action to contest the will of Elizabeth Milanko, who died on December 22, 1959, at the approximate age of 70. Upon a trial to a jury a verdict was returned finding that the paper writing produced and read in evidence was not the will of the deceased. Judgment was entered in accordance with the verdict, and after post-trial motions proved unavailing, proponent, individually and as executor, appealed to the Supreme Court. Ruling that it lacked appellate jurisdiction, that court transferred the cause to this court. Pasternak v. Mashak, Mo., 383 S.W.2d 760.

Dorothy Delores Pasternak, the contestant, challenged the purported will on the pleaded grounds of lack of testamentary capacity, improper execution, and undue influence on the part of proponent, Frank Mashak. However, contestant submitted her case to the jury only on the issues of testamentary incapacity and undue influence. Proponent questions the submissibility of contestant’s case and the giving of certain instructions on her behalf, and also complains that certain comments made during the contestant’s argument were prejudicial. The motion for a directed verdict filed by proponent at the close of all the evidence was general in nature and therefore directed to both submissions. It follows that if the contestant’s evidence supported either issue the court did not err in overruling proponent’s motion. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Nelson v. Wabash R. R. Co., Mo., 300 S.W.2d 407. For a reason which will presently appear we consider first whether there was sufficient evidence adduced to make a submissible case on the charge of undue influence. In so doing we bear in mind the rule that we must disregard the evidence offered by the proponent unless it aids contestant’s case, accept the contestant’s evidence as true, and give her the benefit of every inference which may legitimately be drawn from it. Sturm v. Routh, Mo., 373 S.W.2d 922; McGrail v. Schmitt, Mo., 357 S.W.2d 111.

Elizabeth Milanko, the testatrix, was first married to Dr. Horace Reddish. One child was born of their union, a son, Hubert. In 1933 Hubert married Dorothy Eckert, and during the time their marriage lasted only one child was born, the contestant, on November 22, 1936. Dorothy Eckert Reddish was granted a divorce from Hubert, as well as the custody of the contestant, by the Circuit Court of the City of St. Louis on April 28, 1938. In that connection and in consideration of $50 paid to her by Hubert, Dorothy released all rights and interests, including dower, which she had in Hubert’s real and personal property. Shortly thereafter mother and daughter removed from St. Louis to California, where the contestant has resided since she was 3 years of age.

The marriage of the testatrix with Dr. Reddish ended with the latter’s death on February 5, 1938. At some time thereafter, not disclosed by the record, the testatrix married Savo Milanko and they resided for most, if not all, of their married life at 1902a Franklin Avenue in the City of St. Louis.

On the 16th day of February, 1938, prior to being divorced by Dorothy, Hubert Reddish executed his last will by which he left $1.00 to his wife and a similar amount to contestant, his daughter, and the remainder of his estate to his mother, the testatrix. Hubert died on July 14, 1944. Savo Mi-lanko, the second husband of the testatrix, died on February 21, 1959. And as previously stated, the testatrix died on December 22, 1959. Thus the contestant is the granddaughter of the testatrix and her only heir at law.

The proponent of the will, Frank Mashak, is a practicing St. Louis attorney who first became acquainted with the testatrix in 1944, shortly after the death of Hubert. It appears that Steven M. Reddish, the father of Dr. Horace Reddish, owned a substantial amount of real estate in Jersey County, Illinois. Steven died in 1919, survived by his widow, Sarah, and two sons, Clarence and Horace. Sarah died on May 4, 1920, during the administration of Steven’s estate. In general, by his will Steven left the residue of his estate in trust for the benefit of his wife and two sons. At some undisclosed time, whether before or after the death of Horace does not appear, lengthy and involved litigation began in the State and Federal courts in Illinois concerning the construction of Steven’s will, the real estate held in trust, and the extent of the interests of the respective beneficiaries in the corpus and income thereof. It is apparent from the record that a part of the litigation was being prosecuted during the life of Hubert Reddish, the son of Horace and the testatrix, for a concurrent controversy developed between Hubert and two St. Louis lawyers he had employed to represent him therein, Richard A. Austin and Taylor R. Young.

The proponent testified that in the latter part of July or August, 1944, after Hubert’s death, the testatrix consulted him regarding the nature and extent of her interest in the Reddish property. After some investigation on his part, a contract was executed by the testatrix on August 29, 1944, and accepted by the proponent, whereby testatrix employed the proponent as her attorney and in consideration of the services rendered and to be rendered by him agreed to give the proponent fifty per cent of whatever was recovered, whether by suit or compromise. It is unnecessary for the purposes of this appeal to recite the details of the extensive and complicated legal proceedings in the State and Federal courts of Illinois in which the proponent participated on behalf of the testatrix, or to dwell at length upon the litigation in Missouri and Illinois concerning the claims of Austin and Young for payment for services rendered by them to Hubert. Suffice it to say that all such matters were ultimately resolved by two decrees of the Circuit Court of Jersey County, Illinois, the first dated April 4, 1952 and the second July 6, 1953. The final result was that the testatrix received a one-sixth interest in fee to what was called the North Farms; the proponent received one-sixth; the contestant received a one-half interest; and her attorneys Gibbons and Hacker, were given the remaining one-sixth interests. However, such interests were subject to the provision that the testatrix and the proponent were to receive three-fourths of the income for the life of the testatrix, and the contestant and Gibbons and Hacker one-fourth.

According to the proponent, the North Farm was at first operated by Gibbons and Hacker taking the laboring oar on behalf of all the interests. A checking account was established in the name of “Milanko-Reddish Farm” m a bank in Jerseyville. Most of the checks were signed by Gibbons, but one or two were signed by proponent. After about a year difficulties developed between testatrix and proponent on the one hand and the other owners on the other and new arrangements were made. In that connection proponent and testatrix opened a joint checking account, with right of survivorship, at the First National Bank in St. Louis. Checks for their share of the income from the farm were made payable to them, both would endorse them, and the checks were then deposited in the joint account. Out of this account proponent and testatrix paid their share of the expenses of operating the farm, such as seed corn, fertilizer, and taxes. Proponent stated that Mrs. Milanko wrote a few checks in payment of bills, but that he wrote all the rest. In the words of the proponent, so far as their interests in the farms were concerned he and the testatrix operated as “a partnership.” From the evidence it is apparent that proponent was the dominant or managing partner.

Proponent testified that after the conclusion in 1953 of the litigation over the Reddish property he did not perform any more legal work for the testatrix. However, he stated that in 1954 he prepared a quitclaim deed whereby the testatrix conveyed all of her interest in the Jersey County property to proponent and Savo Milanko, her husband, as joint tenants and not as tenants in common, reserving to herself her right to her share of the income during her lifetime. Proponent testified that he and Savo paid testatrix $1.00 in consideration, each paying one-half. The quitclaim deed, introduced in evidence, is dated October 20,1954, and was acknowledged before Edward Krech, a notary and lawyer. According to proponent it was executed in the home of testatrix, in the presence of the notary and proponent.

There was also testimony by the proponent that when Savo died in 1959 he had $1600 in post office savings certificates and $120 in cash in his safe deposit box. Proponent witnessed the signature of testatrix at her request when a postal employee made payment of the certificates at her home, and was told by the testatrix to deposit the proceeds in the Roosevelt Federal Savings and Loan Association. He took it there and opened an account in his name. He stated he wanted to put it in his name as trustee for the testatrix but that, “ * * * they wouldn’t allow me to add her name. * * *” The proponent offered no explanation of why he did not open the account in the name of the testatrix. It was inventoried among the assets of her estate. There was also evidence by the proponent that during the last time the testatrix was in the hospital, shortly before her death, the sum of $1,000 was withdrawn from her share of the farm joint checking account and placed by the proponent in what he termed a special account. From it he paid the hospital and medical expenses of the testatrix.

Proponent identified and introduced in evidence two prior wills which he had prepared for the testatrix. By the first, dated April 28, 1945, she directed that her just debts be paid and that the residue of her estate go to Savo, her husband. By the second, dated April 23, 1948, after the provision for debts, she gave the remainder to her husband and the proponent. As to the last instrument, Mashak testified that in the latter part of June or the first part of July, 1957, the testatrix and her husband appeared at his office and testatrix stated that she wanted to change her will. According to proponent, she gave him directions and in a day or so he prepared and typed the will according to the directions she had given him. Mrs. Dorothy Stallings, one of the witnesses, who had long been a client of proponent, testified that she had gone to proponent’s office and was in his waiting room at the time that Mr. and Mrs. Mi-lanko called to see him. She said that they talked for at least 45 minutes, during which time Mrs. Milanko said they wanted to have their wills made and asked her whether she would be a witness. Mrs. Stallings stated that she would be glad to do so. Irwin Walker, a lawyer, the other witness, testified that he had met Mr. and Mrs. Milanko on three or four occasions in the court house; and that the day before the will was executed Mrs. Milanko called him up and asked him to serve as a witness and he agreed to do so. Walker was asked on cross-examination whether he had ever witnessed any other wills for the proponent and at first said he had not, but then recalled that he had witnessed the wills of proponent and proponent’s wife. Proponent related that he asked Mrs. Stallings and Walker to meet him at his office on July 3, 1957, and they all went together to the Milanko home. There was testimony that the testatrix read the document, that proponent explained it to her, that she was asked if it was what she wanted, and that she replied that it was. Testatrix then signed, as did the witnesses. The writing in question is as follows:

“LAST WILL AND TESTAMENT “KNOW ALL MEN BY THESE PRESENTS, that I, Elizabeth («ee Reddish) MILANKO, residing at 1902-a Franklin Avenue, in the City of St. Louis, State of Missouri, being of sound mind and disposing memory, hereby make, publish and declare this as and to be my Last Will and Testament, hereby revoking all of my prior wills and codicils.
“FIRST: I direct that all my just debts, the expenses of my last illness and funeral be paid as soon after my demise as is reasonable.
“SECOND: All the rest, residue or remainder of my estate, be it real, personal or mixed, I place in trust for my beloved husband Savo Milanko, naming and appointing Frank Ma-shak, Esq., as trustee to act without bond, during the natural life of my husband, and the said trustee is authorized and empowered to use his own discretion in providing for my husband during his life time, said trustee’s judgment and discretion being absolute and irrevocable.
“THIRD: Upon the death of my husband Savo Milanko, I give, devise and bequeath the entire remainder of my estate, be it real, personal or mixed to our mutual friend Frank Mashak, absolutely and in fee simple and to his heirs if he should predecease my husband.
“FOURTH: I nominate and appoint Frank Mashak, Esq., 4114 Olive Street, the executor of this my Last Will and Testament and as trustee to be permitted to serve without bond.
“IN TESTIMONY WHEREOF, I have hereunto set my hand to this my Last Will and Testament in the City of St. Louis, Missouri, on this 3rd day of July, 1957.
/s/ Elizabeth Milanko
Testatrix.”

Proponent testified that the testatrix was a strong-willed person, that Savo had told him on other occasions that he gambled, and that testatrix “ * * * wanted the matter placed so that I could control the amount that he (Savo) would receive in case of her death.” It was related by proponent that Savo’s will was also executed on the same occasion,, in which he left everything to the testatrix, but if she should predecease Savo, then the residue was to go to proponent.

Proponent testified that he prepared the income tax returns for the income from the farm property but that testatrix filed her own return. He stated that during the time he knew her she was ill at times from a gall bladder operation performed prior to meeting her, and that she couldn’t keep anything on her stomach. She also developed cirrhosis of the liver, and a cardiac condition. There was testimony that testatrix was in and out of hospitals at least twice, that her health was poor, and that she was constantly taking medicine. Mashak testified that he had taken Mrs. Milanko to the hospital two or three times and that several times when she went to her doctors she telephoned him 'and he picked her up at a pharmacy and took her home. He stated that during the time he knew testatrix he had eaten a dozen, or so meals in the Milanko home, and that testatrix had been in his home only once, when on returning from Jerseyville they stopped by to drop off a crate of eggs.

Since Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, it has been the rule in this state that a presumption arises that the testator has been unduly influenced by the beneficiary charged therewith when the evidence shows: (1) that a confidential or fiduciary relationship existed between the testator and the beneficiary; (2), that by the terms of the will the fiduciary has been given a substantial bequest; and (3), that the fiduciary was active in procuring the execution of the will. Switzer v. Switzer, Mo., 373 S.W.2d 930; Wilhoit v. Fite, Mo., 341 S.W.2d 806; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842. When supported by probative evidence the presumption makes a prima facie case which does not disappear upon the introduction of rebutting testimony and raises an issue for the jury. Loehr v. Starke, supra; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Cuthbert v. Heidsieck, Mo., 364 S.W.2d 583.

In his brief proponent freely admits that a confidential relationship existed between the testatrix and proponent. As to the second element required to raise the presumption, the will itself is sufficient proof. Subject to the trust created for the benefit of her husband during his lifetime, it provides that the proponent or his heirs are to receive the entire remainder of the testatrix’s estate. But proponent argues that mere proof of a confidential relationship and an opportunity to exert undue influence, without more, is insufficient to take the case to the jury, citing Loehr v. Starke, supra; Aaron v. Degnan, Mo., 272 S.W.2d 216; Powell v. Raleigh, Mo.App., 244 S.W.2d 387, and that the record is devoid of any credible evidence that he unduly influenced the testatrix in any manner. The rule is as contended for by proponent but an examination of those decisions will reveal that in both the Loehr case and the Aaron case there was no evidence that the fiduciary charged with having exerted undue influence had engaged in any activity connected with the conception of the will; and in the Powell case the judgment revoking the will was reversed only because of erroneous instructions. What the proponent really means is that there is no direct evidence of undue influence. It has been recognized, however, that undue influence “is not proclaimed from the housetop, * * * ” Wilhoit v. Fite, Mo., 341 S.W.2d 806, 813, and that direct proof is difficult, if not impossible, to obtain. Hence the rule is that the fact may be proven by circumstantial evidence. Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842; Larkin v. Larkin, Mo., 119 S.W.2d 351; Webster v. Leiman, 328 Mo. 1232, 44 S.W.2d 40.

An exhaustive review of the Missouri cases discloses that when the existence of a confidential relationship and a benefaction to the fiduciary is shown, our appellate courts have adopted a very liberal attitude regarding the quantum of evidence necessary to establish that the fiduciary was actively concerned in some way which caused or contributed to cause the execution of the will. Thus proof that the beneficiary who benefited procured and paid the lawyer who drew the will, or that he arranged for and attended conferences at which the will in prospect was discussed, has been held sufficient evidence of activity in the procurement of the will. Machens v. Machens, Mo., 263 S.W.2d 724; McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400. And where activity in the preparation and execution of the will is reasonably proven, such evidence, together with that of the confidential relationship and the benefaction, is sufficient to raise the presumption of undue influence and to make a submissible case for the jury on that issue. Pulitzer v. Chapman, supra; Odom v. Langston, 347 Mo. 1201, 152 S.W.2d 124; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842; Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367; Machens v. Machens, supra; McCormack v. Berking, supra; Wilhoit v. Fite, supra. In the light of those cases it logically follows that the evidence is sufficient to create the presumption when a will leaving a substantial bequest to an attorney is shown to have been drafted and its execution supervised by him. This would seem to accord with the rule that “ * * * public policy dictates the necessity to protect the confidential and fiduciary attorney client relationship, * * * ” Laspy v. Anderson, Mo., 361 S.W.2d 680, 682. And see Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38; Cuthbert v. Heidsieck, Mo., 364 S.W.2d 583; 7 C.J.S. Attorney and Client § 127; 7 Amer.Jur.2d, Attorneys at Law, Sec. 96. Such a presumption (or inference) is, of course, rebuttable, and in fairness to proponent it should be said that there was countervailing testimony on his part and that of the attesting witnesses. But the contestant was not bound by that testimony and the jury had the right to disbelieve it. Wilhoit v. Fite, Mo., 341 S.W.2d 806. Taking into account all of the facts and circumstances shown by the evidence we think the evidence in this case was as strong or stronger than that which was held sufficient to make a submissible case on the issue of undue influence in Pulitzer v. Chapman, supra; Clark v. Powell, supra; McCormack v. Berking, supra; and Machens v. Machens, supra. Hence the court did not err in overruling proponent’s motion for a directed verdict at the close of all the evidence.

Proponent next contends that the court erred in submitting to the jury the issue of the testatrix’s lack of testamentary capacity. That issue was submitted on the part of contestant by an instruction numbered by the court as Instruction No. 1. Proponent offered and the court gave an instruction on the same subject which was designated by the court as Instruction No. 8. Proponent now maintains that there was no substantial evidence introduced to support the submission to the jury of the issue of testamentary incapacity, and that the court, therefore, erred in giving the contestant’s instruction. Contestant seems to tacitly concede the lack of probative evidence, for neither in her brief nor in oral argument did she dispute proponent’s assertion of insufficiency, or point to any evidence claimed to be sufficient to support the submission. Instead, she invokes what has been referred to as the rule of “invited error,” and cites in support thereof Mowry v. Norman, 223 Mo. 463, 122 S.W. 724. There the will was challenged on the grounds of undue influence and testamentary incapacity. The proponent filed a general peremptory instruction, which was refused, and the court’s action sustained because the Supreme Court had held in a prior appeal that the evidence was sufficient to make a jury question as to undue influence. The proponent also asked and was given a separate peremptory instruction on the due execution of the will, but he did not request a separate peremptory instruction on the issue of lack of testamentary capacity. Instead, as the report points out, the proponent asked and was given an instruction submitting to the jury the question of mental incapacity. Contestant offered and the court gave a converse instruction on the same issue. On appeal from an adverse decision proponent contended that the evidence was not sufficient to show lack of testamentary capacity and that the court erred in giving contestant’s instruction. Proponent’s claim of error was overruled on the grounds, first, that the proponent (defendant) had not asked for a separate peremptory instruction: (loc. cit. 472, 122 S.W. loc. cit. 726)

“As to the second question, i. e., that of mental incapacity, the defendant instead of asking for a peremptory instruction and thereby forcing the court to declare whether or not there was any evidence upon which to submit said question, said defendant assumed a different course; that is to say, he asked and was given instructions fully covering and submitting to the jury the question of mental incapacity.”

As the second grounds for its ruling the court pointed out that proponent had invited the error by being the first to offer an instruction on the issue, and was, therefore, in no position to complain: (loc. cit. 473, 122 S.W. loc. cit. 727)

“ * * * When such defendant by instructions submitted by him and approved by the court presents that question to a jury, it cannot be said that the opposite party has committed error when he submits and has approved an instruction upon the same question, unless the instructions so given are absolutely at variance, so that a jury might be misled by either or all of the instructions.
“It has been continuously held that, where one side presents instructions upon certain points, the other side cannot be held as committing error in presenting similar instructions upon the same question. See Gordon v. Park, 219 Mo. [600] l. c. 611 [117 S.W. 1163 l. c. 1166] and cases cited.
“In this case the instructions asked and received by defendant were as broad as the law will permit, and he, having invoked the judgment of the jury upon the question of mental incapacity, is in no position to complain of a proper instruction upon the same question by the plaintiffs. * * * ”

It should be noted, in passing, that that part of the opinion in Mowry v. Norman, supra, regarding the necessity of demurring separately to each issue is no longer the law. At the time that case was decided, and for a period thereafter, the rule was that if a defendant wanted to save his point as to the insufficiency of the evidence on each of the plaintiff’s pleaded assignments he was required to demur to the evidence on each issue separately; and that he waived any error in the overruling of his general demurrer to the evidence by offering instructions on the issues submitted. Torrance v. Pryor, Mo., 210 S.W. 430. But the Torrance case was expressly overruled by Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600. The rule announced by Elkin and the later decisions is that a general demurrer challenges the sufficiency of the evidence on every pleaded assignment, and that the defendant does not waive the error in the submission of an issue unsupported by the evidence by offering a converse instruction. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589; Myers v. Buchanan, Mo., 333 S.W.2d 18. The reason for the rule, as pointed out in Elkin v. St. Louis Public Service Co., is “ * * * because such a submission on the part of defendant is not voluntary but is forced by the adverse ruling on the demurrer to the evidence. * * * ” (74 S.W.2d 601)

The view of the rule of invited error expressed in Mowry v. Norman, supra, accords with the present concept of that rule. As is pointed out in an exhaustive discussion of the rule in Myers v. Buchanan, Mo., 333 S.W.2d 18, the doctrine is predicated on the assumption that the party complaining of his opponent’s error invited or induced his opponent to commit the error. But as is there made clear, the rule has no application when the party complaining did not invite the error and was forced to his position by the rulings of the court. Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 285 Mo. 669, 227 S.W. 67, 76, distinguishes between the party who invites the error and the party who yields to it on demand of the court: “ * * * It did not voluntarily choose that position; it was driven to it after it had chosen other ground. Consideration of the cases cited above will show that emphasis is placed upon the voluntary choice of ground by a party who is held to waive his right to complain * * Thus, where an erroneous instruction offered by one party is given over the objection of the other, who then requests a countervailing instruction, it is held that the second party did not waive his right to complain since he did not invite the error nor voluntarily acquiesce therein. Griffith v. Continental Casualty Co., 290 Mo. 455, 235 S.W. 83; Beckwith v. Standard Oil Co., Mo., 281 S.W.2d 852; Berry v. Harmon, Mo., 329 S.W.2d 784.

We concur in the rule of invited error announced in Mowry v. Norman, supra, and with the manner in which it was applied in that case. But there is an important and controlling factual difference which distinguishes that case from the case at bar. The result reached in Mowry was based on the fact that it was the proponent who first offered the erroneous instruction on testamentary incapacity. Whatever may have been the procedure followed in Mow-ry, the record in the instant case does not show that this proponent was the first to offer an instruction on that issue. Indeed, where, as here, the will is challenged on more than one ground it is difficult to see how the proponent would be in the position of initiating an error of this character. For example, the contestant in this case alleged three grounds of attack upon the will, improper execution, undue influence, and lack of testamentary capacity. Upon the overruling of his motion for a directed verdict at the close of all the evidence the proponent obviously did'not know whether contestant would endeavor to submit her case to the jury on one or more of such questions until the contestant offered her instructions and the court decided which would be given. The fact that the court designated contestant’s instruction as Instruction No. 1 and proponent’s as Instruction No. 8 indicates that it was the contestant who first offered an instruction on mental incapacity. Hence if any error was invited in the instant case it would appear that the invitation was extended by the contestant, not the proponent.

The record shows that the proponent filed a motion for a directed verdict at the close of contestant’s evidence, and again at the close of all the evidence. He duly objected to the giving of Instruction No. 1, and has preserved the point in his after-trial motions. When the court overruled his objection to the instruction proponent was faced with the dilemma of allowing the issue of testamentary incapacity to be submitted to the jury without a counteracting instruction, or of offering a converse instruction to minimize so far as possible the effect of contestant’s instruction. Certainly under these circumstances proponent did not “invite, adopt, acquiesce in, ratify or in any other manner appearing of record ‘waive’ the errors * * * ” in the giving of Instruction No. 1 by offering his Instruction No. 8. Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483, 489; and he “* * * could make the best of the situation into which he was forced by the court’s ruling and yet have a right to complain, * * * ” Berry v. Harmon, Mo., 329 S.W.2d 784, 792.

There is no substantial evidence in this record that the testatrix lacked testamentary capacity at the time the will was executed, and that issue should not have been submitted to the jury. The jury may well have been misled by the submission, for “ * * * Submitting factual issues to a jury implies there is substantial evidence warranting the submitted finding, * * * ” Switzer v. Switzer, Mo., 373 S.W.2d 930, 940. Hence it is held..that “ * * * The giving of an instruction where there is no evidence upon which to base it constitutes reversible error. * * ” Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16, 25; Hart v. Midkiff, Mo., 321 S.W.2d 500; Switzer v. Switzer, supra. Under these authorities we must and do hold that the giving of Instruction No. 1 constituted reversible error.

Other matters complained of by proponent can be considered and remedied by the contestant where necessary on a retrial of the case.

For the error noted the judgment should be reversed and the cause remanded for a new trial. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded for a new trial.

ANDERSON, Acting P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.


author: BRADY, Commissioner.

text:
    A. C. BURGER, Plaintiff-Appellant, v. M. R. CROCKER and Velma Crocker, Defendants-Respondents.
    No. 31837.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.

      Buckley & Campbell, Robert Lee Campbell, St. Louis, for plaintiff-appellant.
    McDonald, Wright & Bryan, Thomas F. McDonald and Raymond F. McNally, Jr., St. Louis, for defendants-respondents.
   BRADY, Commissioner.

The appellant instituted this action against the respondents for the collection of three promissory notes in the aggregate principal sum of $5,661.34, plus interest, attorney fees and costs. A jury trial resulted in a verdict for the respondents and this appeal follows the overruling of appellant’s timely after-trial motions. The parties will hereinafter be referred to by their designation in the trial court.

A brief résumé of defendants’ answer is necessary herein. The defendants admitted they executed the notes and that payment had not been made. They also pled failure of consideration. By other allegations in their answers the defendants ■ alleged that Mr. Crocker had committed perjury at the “instigation and request of plaintiff;” that when Crocker was convicted of this offense plaintiff told him that his attorney’s fees and other expenses during his imprisonment would be taken care of by the plaintiff, who would also take care of all other expenses that would need to be met by either Crocker or his wife while Crocker was in prison; and that these notes were executed for the sole purpose of furnishing plaintiff with evidence to present to the United States Government in the event of inquiry by any agency thereof.

The facts, stated in the light required of this court by the jury’s verdict, follow. Mr. Crocker was the general manager and vice-president of Community Motors, Inc., a corporation controlled by the plaintiff. During the years following the end of World War II and while price controls were in effect upon automobiles, Community Motors sold automobiles for prices in excess of the ceiling price. Crocker, pursuant to a general policy set by plaintiff, determined the amount of overage to be paid in cash and collected it, keeping 10% of the overage for himself and turning the other 90% over to the plaintiff. When agents from the Bureau of Internal Revenue of the federal government began an investigation of Community Motors Crocker was asked to give a formal statement. Before going to a meeting with agents of the Internal Revenue, he informed plaintiff of the meeting. Plaintiff gave him instructions as to what to say and also told Crocker that he would “ * * * take care of everything.” During the course of this meeting Crocker gave a sworn statement denying the practice of collecting a cash overage. He was later indicted on a charge of perjury arising out of this denial and upon a plea of guilty was sentenced to eighteen months in a federal prison. In the meantime plaintiff had been indicted in two cases of tax fraud. In one of these indictments Crocker was a co-defendant.

The night before Crocker was to leave for prison plaintiff came to the Crocker home and urged Crocker not to change his admittedly perjured statement. In plaintiff’s presence Crocker signed five promissory notes in blank and gave them to his wife. This arrangement resulted from Crocker’s statement that he was going to need money for his insurance payments. Plaintiff then told Crocker that “ * * * if the wife needed any money to send them in and he would deposit the money to her account.” Crocker’s testimony was that the plaintiff told him the purpose of the notes was to constitute evidence “ * * * that he 0 wasn’t paying me off to take the rap on the deal,” in case the Internal Revenue Agents were to check on it.

A few days after Crocker departed for prison, his bank called his wife and informed her their account was overdrawn. She called the plaintiff’s comptroller. The plaintiff personally met her at the bank where he deposited a check for $2,250.00 in her husband’s account and instructed her to open her own account into which he deposited $250.00. Mrs. Crocker had power of attorney enabling her to draw checks on her husband’s account. These two deposits accounted for the first note in the amount of $2,500.00 which plaintiff seeks to collect. Thereafter Mrs. Crocker called the plaintiff’s comptroller whenever her account was overdrawn. As a result of these calls the plaintiff deposited $250.00 in her account on July 18, 1956, $50.00 on July 23, $25.00 on July 30, and $25.00 on August 1st. In December of that year she went to the plaintiff’s office where she received plaintiff’s check for $500.00. These sums account for the second note in the amount of $850.00. The third note sued on was for $2,311.34 and represents fees and expenses paid to attorney George C. Dyer in connection with his attendance at a hearing in Washington, D. C., regarding a parole for Crocker. This sum was also paid to the defendants by the plaintiff.

All the parties involved in this action were represented by Mr. Dyer whose deposition was read into evidence. Plaintiff made specific and vigorous objection to reading that portion of Dyer’s deposition wherein he testified that, having in mind the possibility of a “conspiracy indictment” also being returned against these parties, he asked the plaintiff, “How are you handling these payments that you are making to Crocker. * * * ” Dyer’s testimony was that plaintiff replied “Oh, I have some notes and other papers to show to the government or the agents, if they inquire about it.” Plaintiff’s objection was based on the ground that the conversation between Dyer and the plaintiff was privileged. The objection was overruled and the foregoing portion of the deposition was read at the trial. This conversation took place in July of 1956, and Dyer and the plaintiff were the only ones present. Mr. Dyer subsequently withdrew as attorney for either of these parties.

The first demand for payment of these notes came three days after the plaintiff had been sentenced for income tax fraud as a result of a trial at which Crocker changed his admittedly perjured statement and appeared as a witness for the prosecution.

The defendants submitted their case to the jury by Instruction No. 4 which hypothesized Crocker’s conviction for perjury; the subornation of that perjury by the plaintiff; the plaintiff’s promise to pay Crocker’s attorney’s fees and other trial expenses as well as his promise to pay all other expenses Crocker or his wife might incur while Crocker was in prison; and that these notes were only to be used in the event of an inquiry by any agency of the government as to the reason plaintiff was paying the defendants’ expenses during Crocker’s imprisonment.

The plaintiff has briefed these allegations of prejudicial error. He contends he was entitled to a directed verdict; that the trial court should not have overruled his objection to the reading of that part of Mr. Dyer’s deposition set out herein; and in the giving of Instruction No. 4.

The plaintiff candidly admits the evidence clearly establishes the nature of the agreement between the plaintiff and Crocker. He urges that the defendant, having the burden of proof, cannot advance that defense and therefore plaintiff’s case stands uncontradicted entitling him to a directed verdict. Plaintiff’s reasoning would have us ignore that these parties are in pari delicto and that the contract between them is one which involves an illegal act or which is void as against public policy. A court will not aid either party to enforce such an agreement nor assist them in any attempt to seek relief to a transaction growing out of such agreement. As stated in 17 C.J.S. Contracts § 272, p. 1188: “No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out; nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxims, Ex dolo malo non oritur actio, and In pari delicto potior est conditio defendentis. The law in short will not aid either party to an illegal agreement; it leaves the parties where it finds them.” Thus it is that “As between the immediate parties or their privies, a bill or note founded on an illegal consideration, or executed as a means of carrying out an illegal contract or transaction, is void and unenforceable. * * * ” 10 C.J.S. Bills and Notes, § 154a, page 628. See Duncan v. Black, Mo.App., 324 S.W.2d 483, l. c. [5], p. 487. Subornation of perjury is expressly made a crime by the provisions of Section 557.040, RSMo 1959, V.A.M.S. Thus in Rainer v. Western Union Telegraph Co., Mo.App., 91 S.W.2d 202, l. c. 205, the court quoted with approval the following excerpt from Ward v. Hartley, 178 Mo. 135, 77 S.W. 302: “* * * And so it is with a contract void because contrary to public policy, whichever party comes into court relying on it will be turned out and not only will he be turned out when he comes seeking to enforce a contract contrary to public policy, but when he comes, either as plaintiff or defendant, seeking relief touching past transactions growing out of such a contract, the court will not listen to him.

The court has no more regard for the man who comes seeking to recover what he voluntarily laid out in furtherance of an unlawful project than it has for one who seeks to enforce an unlawful contract. Courts prefer to have nothing to do with transactions growing out of such contracts, and to leave parties just where their own voluntary acts in such cases have placed them. Tyler v. Larimore, 19 Mo.App. [445] 458; Attaway v. [Third Nat.] Bank, 15 Mo.App. 578; Green v. Corrigan, 87 Mo. 359.”

But the plaintiff insists that we must disregard so salutary a rule and deny its application to the instant case because the defendant had the burden of proof and cannot bear that burden since- he"is not allowed to rely upon the nature of the contract between Crocker and the plaintiff. In Todd v. Ferguson, 161 Mo.App., 624, 144 S.W. 158, l. c. 160, the court disposed of this contention stating: “The law will not allow any one to found a legal right on a transaction so immoral, nor will it permit you to hide behind a rule of practice and receive reward from your fraud on the technical ground that you made out a prima facie case without being compelled to exhibit your own wrong.” The opinion quotes at length from Bugg v. Towner, 41 Georgia 316, l. c. 318, wherein Lord Mansfield in Holman v. Johnson, Cowper, 343, is cited as having stated the complete answer to plaintiff’s contention. It is that the rule that a court will not lend its aid to either party to such an agreement is not made for the benefit of either party (here the plaintiff) but for the benefit of the ideal of justice and the public policy. This court will no more assist the plaintiff to recover upon these notes which grew out of an agreement to commit a crime as well as an agreement which was void as against public policy than it will assist the defendant to deny recovery on that basis. We will hear neither the plaintiff nor the defendant. There is no justice to either claim for both voluntarily entered upon such a course of action. We will leave these parties where they were when they entered the courtroom.

As might be expected the issue of whether the plaintiff did in fact instigate, request and pay Crocker to commit perjury was hotly contested. It is in this context that plaintiff urges the court prejudicially erred in overruling his obj ection to reading that portion of Mr. Dyer’s deposition as set out herein. Plaintiff contends this evidence went solely and directly to the issue of plaintiff’s subornation of Crocker’s perjury. It is not clear that this evidence does so. The plaintiff’s statement that he had some notes and other papers to show the government if they inquire about it could well have been made absent any evidence of the agreement between plaintiff and Crocker. However, assuming arguendo that this evidence went to that issue, the trial court did not prejudicially err in permitting that part of the deposition to be read. At the time plaintiff made this statement he was under two indictments for tax fraud arising out of these overage payments. Crocker had then given a perjured statement at plaintiff’s instigation and request. If the plaintiff was to avoid conviction under the indictments, it was vitally important for Crocker to main-■t-ain- the truth of his perjured statement. The plaintiff had been to Crocker and urged him not to change his story. When considered in the light of the whole evidence in this case, plaintiff’s statement to Mr. Dyer was an admission that plaintiff intended to commit yet another crime, i. e., use these notes to cover up his continued subornation of Crocker’s perjury and, in fact, to insure that Crocker gave perjured testimony at the plaintiff’s trial.

Sec. 491.060, (3), RSMo 1959, V.A.M.S., deals with the attorney-client privilege and, in Gebhardt v. United Rys. of St. Louis, Mo., 220 S.W. 677, l. c. 679, was held to constitute a declaration of the common law. The court held: “ * * * neither under our statute, R.S.Mo.1909, § 6362, nor at common law, of which said statute is simply declaratory, can a person employ an attorney for the purpose of aiding and abetting him in the commission of a future crime or fraud, and thereby seal the lips of his lawyer to secrecy and thus prevent the exposure or detection of such crime or fraud. The privileged communication may be a shield of defense as to crimes already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society. The law does not make a law office a nest of vipers in which to hatch out frauds and perjuries. This case was first set for trial on the 20th of October, 1914, and it was not only the right, but it was the duty, of Attorney Fensky, when he found, upon examining his client before the trial, that the case had no foundation in fact and could not be successfully maintained without perjury, to at once withdraw from the case, as he did, and to prevent the consummation of the contemplated crime and fraud by testifying to the facts as related to him by the plaintiff. Such communication was not privileged. It is unnecessary to add anything to what has been so forcibly said on this subject by Judge Ellison in Hamil & Co. v. England, 50 Mo.App. 338, and by Judge Gantt in State v. Faulkner, 175 Mo. 546, 75 S.W. 116, and State v. Lehman, 175 Mo. 619, 75 S.W. 139.” It is to be noted that subsequent to the conversation between the plaintiff and his attorney, Mr. Dyer withdrew completely from representation of any of the parties in any of the facets of this case. In view of the fact that, considered within the fabric of this case, the plaintiff’s statement constituted a brazen declaration of an intent to commit a crime in the future, Mr. Dyer’s action was understandable. The statement objected to was not a privileged communication and the trial court correctly overruled the objection.

The plaintiff’s contentions with regard to Instruction No. 4 are without merit and can be quickly disposed of. Two attacks are briefed and presented to sustain the plaintiff’s contention that the giving of Instruction No. 4 constituted reversible error. The plaintiff first contends the instruction is fatally deficient in that it failed to require a finding the funds received in return for the notes were for expenses incurred by Crocker due to his trial and conviction. The defendants’ amended answer was not limited to alleging the plaintiff agreed to pay only the expenses incurred by Crocker arising from his trial and conviction. That answer went on to allege that the plaintiff also agreed that he would pay “ * * * all other expenses that would need to be met by either of the defendants while the said M. R. Crocker was in prison * * Instruction No. 4 submitted these allegations of defendants’ answer in identical language requiring the jury to find “ * * * and that prior to said defendant’s departure for prison, plaintiff had told him in substance that he would pay all attorneys’ fees and other expenses incurred by the trial and conviction of said M. R. Crocker, as well as all other expenses that would need to be met by either of the defendants while the said M. R. Crocker was in prison * *

The plaintiff then contends that the instruction was erroneously given as it “ * * * failed to conform to defendants’ evidence that the purported agreement between plaintiff and defendants was made at the inception of the investigation by the Internal Revenue Service.” The simple answer is that this was not the defendants’ evidence. Crocker testified that when he informed plaintiff he was going to the Internal Revenue Office where he would be questioned, plaintiff told him what to say and that he would take care of any expenses Crocker had “pertaining to the case.” However, when plaintiff came to the Crock-er home the night before Crocker was to leave for prison, it was obvious that to limit plaintiff’s payments to those pertaining to the case was not going to be of much benefit to Crocker. Crocker informed the plaintiff of his need for money to pay his insurance policies and the second agreement was made. Under its provision the plaintiff arranged for the subterfuge of the notes which were to cover that need and any money his wife might need. The plaintiff’s contention is without merit.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

WOLFE, P. J., ANDERSON, J., and WOODSON OLDHAM, Special Judge, concur.

RUDDY, J., not participating.


author: JAMES D. CLEMENS, Special Judge.

text:
    Richard James WEISS, (Plaintiff) Appellant, v. Marlene M. WEISS, (Defendant) Respondent.
    No. 31880.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.
    David J. Kueter, Florissant, for plaintiff - appellant.
    Gragg, Aubuchon & Walsh, Harold S. Goodman, St. Louis, for defendant-respondent.
   JAMES D. CLEMENS, Special Judge.

In this divorce action the plaintiff-husband appeals, claiming excessive allowances to the defendant-wife. A divorce was granted to her and she was allowed $35 weekly alimony, $15 weekly support for each of five small children, and $500 for her attorney’s fee.

With commendable frankness, plaintiff in his brief concedes the defendant’s need for the $110 weekly allowance to meet the reasonable expenses of maintaining herself and the children. He urges that the amount is unreasonable in view of his earnings.

Plaintiff’s first point is that the trial court erred in admitting and considering evidence of earnings from a previous employment. Until three weeks before trial plaintiff had been steadily employed, earning an average net weekly wage of about $170. He became dissatisfied and took another job, earning an average net weekly wage of about $132.

Plaintiff relies on a statement by this court in Schwent v. Schwent, Mo.App., 209 S.W.2d 546. There, the husband’s wages had been involuntarily reduced, and in affirming the award of alimony we ruled that the trial court should not have disregarded present earnings and based its award solely on gross earnings of a previous year. But, in that case and in others cited by both parties, it is held that the proper yardstick to measure the adequacy of marital allowances is the husband’s capacity to pay. Both his present and past earnings are evidence of that capacity. Compare Cottrill v. Cottrill, Mo.App., 379 S.W.2d 60, where an able-bodied husband had neither income nor property. Here, the husband voluntarily reduced his earnings on the eve of the trial. It is not improper to measure his capacity to support his family by his former earnings.

Defendant testified to weekly personal expenses of approximately $50, and also to weekly payments of some $25 on short-term loans, which by now have or should have been paid. Thus simplified, the plaintiff has an earning capacity of $170 per week, and the trial court allowed $110 weekly for the support of the defendant and five children, leaving $60 for the plaintiff’s weekly expenses. Plaintiff had some $300 in the bank, and he owned an automobile and half the $5,000 equity in the parties’ home.

This case presents an all too common dilemma. Here a young couple is in debt even while living under one roof. Then they establish separate homes, each employs counsel, and they embark on a voyage of protracted litigation. They then ask a court to tell them how they should divide their inadequate resources to meet their increased expenses. In the trial below the learned trial judge asked the plaintiff if this suit might be a luxury which he could hardly afford, and the plaintiff acknowledged that it was. He now asks us to rule that the trial court’s judgment for support was clearly in error. (V.A.M.R. Civil Rule 73.01(d)). We do not so consider it.

Plaintiff also challenges the allowance of $500 for defendant’s counsel. The evidence was that he had numerous conferences and phone calls with her. He prepared an answer and cross-bill. A day was spent in court on the motion for temporary allowances. There were several extended negotiations with the parties and counsel on an abortive property settlement. Depositions were taken. Her counsel prepared for and tried the case on the merits of the cross-bill. His estimated time was 30 to 35 hours, and there was evidence that the reasonable value of his services was $700. Thus, all the facts concerning the legal services rendered and the financial condition of the parties were before the trial court. It is not without significance that the expenses were necessitated by the plaintiff instituting this action and compelling defendant to employ counsel to establish that she, not he, was the innocent and injured party and was in need of the court’s decree to support herself and their five children. Although the award may be considered liberal in view of the plaintiff’s limited capacity to pay, we cannot say the discretion and responsibility of the trial court has been abused.

The trial court’s judgment is considered proper, and should be affirmed. It is so ordered.

ANDERSON, Acting P. J., and RUDDY, J., concur.


author: ANDERSON, Judge.

text:
    Irving CORNBLATH, d/b/a Radine Department Store, Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant-Respondent.
    No. 31786.
    St. Louis Court of Appeals. Missouri.
    June 15, 1965.
    Rehearing Denied July 13, 1965.

      Ziereher, Tzinberg, Human & Michen-felder, Albert A. Michenfelder, Jr., George J. Bude, Clayton, for plaintiff-appellant.
    Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This action was brought by appellant, plaintiff below, to recover under an insurance policy issued to him by respondent, for a loss caused by a safe burglary occurring on appellant’s premises, said policy by its terms insuring appellant against loss by reason of safe burglary or robbery at said premises. The case was submitted to the Court on an agreed stipulation of facts. From this stipulation it appears that appellant was the owner, proprietor and operator of a retail store at 1810 S. 39th St. in St. Louis. The business was operated under the trade name Radine Department Store.

On or about January 4, 1961, respondent issued to appellant its “Money and Securities Broad Form Policy” No. BF-35374. This policy was for a term of three years and was in full force and effect on April 12, 1962.

The above mentioned policy under “Coverage A — Loss Inside the Premises” provides as follows:

“To pay for loss of money and securities by the actual destruction, disappearance or wrongful abstraction thereof within the premises or within any banking premises or similar recognized places of safe deposit.
“To pay for loss of (a) other property by safe burglary or robbery within the premises or attempt thereat, and (b) a locked cash drawer, cash box or cash register by felonious entry into such container within the premises or attempt thereat or by felonious abstraction of such container from within the premises or attempt thereat.
“To pay for damage to the premises by such safe burglary, robbery or felonious abstraction, or by or following •burglarious entry into the premises or attempt thereat, provided with respect to damage to the premises the insured is the owner thereof or is liable for such damage.”

Under the policy “money” is defined as “ * * * currency, coins, bank notes and bullion; and travelers checks, register checks and money orders held for sale to the public.”

The policy also defined “premises” as the “ * * * interior of that portion of any building at a location designated in the declarations which is occupied by the insured in conducting the business as stated therein.”

In the schedule of coverage, the location of the premises is stated to be “1810 S. 39th Street, St. Louis, Missouri,” and the limit of coverage with respect thereto under “Coverage A” is fixed at the sum of $2,-000.00. The policy describes the business conducted on the premises as a “Department Store.”

On April 12, 1962, appellant sustained loss by -reason of a safe burglary whieh occurred on the above mentioned premises. This loss consisted of property damage to appellant’s safe caused by felonious breakage in the amount of $375.00, property damage to the first floor of said premises caused by a forceable entry amounting to $25.00, and loss by burglary of certain currency and coins in the sum of $1,676.35. A partial recovery of the currency and coins was subsequently made. In addition, appellant sustained a loss of certain United States coins, which by reason of their mint dates and condition, have a market value as collector’s items, or numismatic value, in excess of their face value. The face or exchange value of the coins is $58.01. The coins owned by appellant had no relation to his trade or business.

The parties stipulated that if appellant was entitled to recover only the face value of the rare coins, respondent’s liability under the policy is $1,034.36. Respondent tendered this sum into the registry of the Court for the benefit of appellant. It was further stipulated that, if appellant is entitled to recover on the basis of the market or numismatic value of the rare coins, respondent’s liability under the policy is $2,000.00 or $965.64 more than that paid into the registery of the Court. In that event the parties agreed by the stipulation of facts that judgment should be for appellant for $965.64 at respondent’s cost.

On October 1, 1963, the Court entered its judgment, finding that appellant did in fact sustain loss and damage to his property as referred to above, including the loss of certain rare coins owned by appellant as collector’s items. The Court also found that these rare coins have a face value of $58.01 and were “Money” as that term is used in “Coverage A” of the insuring agreement of the policy. The Court further found that appellant was entitled to recover the sum of $1,034.36, the amount previously tendered into the registry of the Court for the benefit of appellant. Judgment was therefore ordered for the respondent, defendant below, at appellant’s cost, and that the sum of $1,034.36 paid into the registry of the Court for appellant’s benefit be paid to appellant. From this judgment the appeal was taken. The amount tendered into Court was thereafter paid to appellant under Court order and agreement between the parties that said payment would be without prejudice to plaintiff’s right to appeal from the judgment.

Appellant contends that the Court erred in holding that the face value of the coins in question must be used in the determination of their value. It is urged in support of this contention that although we regard money as a medium of exchange, the policy in suit does not include the phrase “medium of exchange” in the definition of money, hence any coin is money and for that reason there is no justification for the assessing the loss thereof at face value, but on the contrary, such a loss should be assessed at the market value. As an example of the alleged fallacy in the Court’s ruling appellant points out that confederate coins and ancient coins have no exchange value, yet are coins with a market value as collector’s items which value should be recoverable in assessing their loss. Another analogy urged is that of bonds which have a face value, but are bought and sold according to their market value.

No matter how broad or how general the terms of a contract may be, it will extend only to those matters with reference to which the parties intended to contract. And in construing the contract, it is always permissible for the Court to consider the situation of the parties, and the accompanying circumstances at the time of its execution in order the more perfectly to understand and explain the intent and meaning of it. 17A C.J.S. Contracts § 321, p. 199; Restatement of the Law of Contracts, § 235(d); St. Louis Union Trust Co. v. MacGovern & Co., 297 Mo. 527, 249 S.W. 68; North St. Louis Building & Loan Ass’n v. Obert, 169 Mo. 507, 69 S.W. 1044; Fulkerson et ux., v. Great Lakes Pipe Co., 335 Mo. 1058, 75 S.W.2d 844.

In Restatement of the Law of Contracts, the author comments on the rule stated in clause (d) of § 235 as follows:

“Comment on Clause (d) :
“e. The court in interpreting words or other acts of the parties puts itself in the position which they occupied at the time the contract was made. In applying the appropriate standard of interpretation even to an agreement that on its face is free from ambiguity it is permissible to consider the situation of the parties and the accompanying circumstances at the time it was entered into — not for the purpose of modifying or enlarging or curtailing its terms, but to aid in determining the meaning to be given to the agreement.
“f. In an integrated contract, however, if accompanying circumstances indicate an intent at variance with any meaning that can be attached to the words of the contract, even when the words are looked at in the setting in which they were used, that intent can be given no effect unless the facts justify a reformation of the contract. Yet, as all language will bear some different meanings, evidence of surroundings is always admissible. Its operative effect depends on how far the words will stretch, and how alien from the ordinary meaning of the words is the intent they are asked to include.”

Considering the facts and circumstances in evidence it becomes apparent that the coverage of the policy in the case at bar was designed to cover loss of money and evidence of money along with other property incidental to the conduct of his business of running a department store. In other words from risks to which trades and businesses are exposed, and those items which were or could be used in connection therewith. Money in business is a medium of exchange passing at its face value. Here the rare coins constituted money which could be used in the conduct of the business. They are not in the same category as confederate money, or ancient coin which coins are not used as a media of exchange. In the case of the latter a policy of insurance which covered same might be said to contemplate coverage in accordance with their market value as rare coins. But in the case at bar, appellant was not in the business of dealing in rare coins at his department store and the policy did not mention rare coins, but merely did mention money which was defined as currency, coins, etc., and it must have been, considering the nature of the business and the policy terms, within the contemplation of the parties to insure money as a medium of exchange in the operation of the business and at its face value. A bond of course is not money or a medium of exchange, but property the market value of which would be recoverable in case of loss. We fail to see how an argument could be based thereon in support of appellant’s contention.

It is next urged that assuming, arguendo, that the trial court was not in error in finding that as “money” the loss of the coins should be assessed at face value, the Court erred in failing to find that the loss of the coins was covered under the “other property” coverage provision. In support of this contention it is said' that the rare coins may be classed in two categories; that if they are used as money, they are money, but if used as a coin collection, they are “other propertythat the primary characteristics and utility of rare coins relate to history and art and not to money, and for that reason said coins should be construed as “other property” and their value should be considered at market value as rare coins and not as a medium of exchange.

This argument begs the issue by ignoring completely the clear language of the policy, and would inject an ambiguity where none exists. “Money” is expressly defined in the policy as including “coins.” The policy insures two classes of objects (1) “money and securities,” and, (2) “other property.” Both the terms “money” and “securities” are expressly defined in the policy. Since “coins” are expressly defined as money, they cannot be “other property.”

From all the facts and circumstances, we are convinced of the correctness of the trial court’s ruling. Its construction of the policy was proper. The judgment is affirmed.

RUDDY, P. J., and WOLFE, J., concur.