Opinion
No. 7096.
November 10, 1952.
APPEAL FROM THE CIRCUIT COURT, NEWTON COUNTY, REX V. McPHERSON, J.
Elmore G. Crowe, Jefferson City, for appellant.
Graves Graves, Neosho, for respondent.
This is an appeal by the State Department of Public Health and Welfare, from a judgment of the Circuit Court of Newton County, Missouri, reversing a decision of the director of that department, which denied an application for old age assistance. The reason given for such denial was that the claimant and his wife had transferred property (approximately $2,800 in cash) to a granddaughter for the purpose of rendering claimant eligible for such assistance.
The evidence, as gleaned from the record before us, shows that in September, 1946, claimant made an application for old age assistance, which was rejected because it appeared that claimant's wife had on deposit in a bank at Seneca, Missouri, the sum of $4,164.14. Applicant was notified of the reason for this rejection by letter and at that time made no claim that the money belonged to anyone other than himself and wife. On August 5, 1948, he filed another application. This claim was rejected in October, 1948, because he and his wife, in March, 1948, had given their granddaughter, Alimae Carman, approximately $2,800 in cash. He appealed from this decision of the referee to the State Department of Public Health and Welfare, which also found him ineligible because he and his wife had made this transfer of cash to the granddaughter for the purpose of rendering himself eligible for old age assistance. This decision of the director rendered June 30, 1949, provided that it "should not be construed to preclude the claimant from filing a new application if in the future, he is able to secure evidence of the existence of the grand-daughter and evidence that the funds in question belonged to said grand-daughter."
In January, 1950, another application was made (the one now before us) and it was also rejected by the referee and on appeal, by the director of the State Department of Public Health and Welfare, for the reason that applicant had transferred his money to become eligible for old age benefits.
The evidence on his hearing showed that in March, 1948, claimant's wife withdrew at least $2,650 and perhaps $2,800 from the Bank of Seneca and gave it to their granddaughter, in cash, at a secret rendezvous, near a bridge in Seneca, Missouri. It was claimed by applicant and his wife, that this money belonged to their granddaughter, who, at the time of the hearing, was living at Seneca, Missouri, and who had given it to them from time to time after 1942, for safe-keeping. Claimant first testified that it was paid by the granddaughter in checks but later in his testimony, he asserted it was paid in cash at different times and in different amounts, about which he was very uncertain. He said it was delivered in person some of the time and at other times it was brought by his granddaughter's friend, but he couldn't name the friend. He kept no record but claimed that his wife did. He did not know the exact amount that belonged to his granddaughter but claimed that the reason she turned the money over to them was that she was having trouble with her first husband. He was uncertain as to what the first husband's name was. At one time $800 was delivered to them. At one time, claimant and his wife sent the granddaughter $350 by wire. He didn't know the date of this transmittal or whether all the money she sent them was deposited. He testified that his and his wife's salary checks were deposited in the bank account with money of their granddaughter.
His wife testified that when her granddaughter would give her any money, which was always in cash, she would sometimes spend it and at other times deposit it in the bank at Seneca with her and her husband's salary checks. At one time she said she sent her granddaughter $50 by wire but the balance of the money she checked out and gave to her personally. She admitted withdrawing approximately $2,600, in cash from the bank and delivering it to her granddaughter near a bridge at Seneca. She had no record of the amount or the dates of the deposits, or of the total amount due her granddaughter. These amounts were always delivered by her granddaughter to her in person, none was sent. The granddaughter was not produced as a witness nor was her deposition or affidavit presented for the enlightenment of the referee. Claimant's wife did not know the name of her granddaughter's husband at the time the various sums of money were said to have been delivered but it could have been Roberts, McRoberts, McDaniels or McPherson.
The evidence showed that a Mr. Richard Robertson had at one time (while the second application was pending) interviewed at Joplin, Missouri, a person, declared to be the granddaughter. That he had taken an affidavit from this person which he had considered and submitted to the director of the State Department of Public Health and Welfare in Jefferson City and while he had no reason to doubt the facts stated therein, he and the director to whom the case went on appeal, after considering the affidavit, again refused the granting of the old age assistance to the applicant. This affidavit is not in the record before us but was not sufficient to convince the referee or the director in the former case, and the director denied the application.
A motion was filed here by respondent asking dismissal of the appeal because appellant had failed to prepare and serve a brief. Neither party has filed a brief in this court but the statute, Section 208.110 RSMo 1949, V.A.M.S., states that appeals come to this court "upon the record in the same manner as provided herein for appeals from the director to the circuit court, * * * [and that they] shall be advanced on the docket" for immediate hearing and determination. The statute further provides, Section 208.100 RSMo 1949, V.A.M.S., that when an appeal is taken from the director that such "appeal shall be tried in the circuit court upon the record of the proceedings had before and certified by the director * * *."
While it seems to us that when the State Department of Public Health and Welfare appeals a case, they should furnish us a brief, we will, however, (in this case) hear the matter upon the record so certified to us. The motion to dismiss the appeal for failure to file briefs is therefore overruled.
The law is well settled that the applicant for old age assistance has the burden of proving eligibility. Brattin v. State Social Security Commission, Mo. App., 194 S.W.2d 536; Bare v. State Social Security Commission, Mo.App., 187 S.W.2d 519; Edwards v. State Social Security Commission, Mo.App., 187 S.W.2d 354.
If there is substantial evidence to support the director's finding, it is binding upon this court, and this is the law, though we would have decided it differently, had we been the original triers of the facts. Brattin v. State Social Security Commission, supra.
In deciding whether there is substantial evidence to support the director's decision, it is our duty to consider only that testimony most favorable to support the findings of the director.
We might observe that in coming to this conclusion, we are bound by the record certified to us and not the evidence that was considered in another and different hearing upon a former application.
We are unable to agree with the learned trial court when it holds applicant has not had a fair hearing. In 1946, the first application was rejected because unquestionably the wife of applicant had more than $4,000 on deposit in the bank at Seneca, which deposit was made up in part, at least, of the salary checks of applicant and his wife. That application was rejected for that specific reason only and there was no claim by applicant at that time that any of the money belonged to his granddaughter. Two years later, and after applicant and his wife had checked out between $2,600 and $2,800 in cash and delivered to their granddaughter in a rather surreptitious fashion, another application was filed and was rejected for the sole reason that applicant had transferred this money to render himself eligible for old age assistance. The director of the State Department of Public Health and Welfare carefully pointed out that his decision was not to preclude applicant from filing another application if he could prove the existence of a granddaughter and that the money transferred actually belonged to her. Apparently, an affidavit of the alleged granddaughter was procured in the hearing on the second application, at Joplin. This application was considered by the Division of Welfare Director of Newton County and also by the director of the department in Jefferson City. It was found insufficient to prove such ownership and the claim was again rejected and again the director called attention to the fact that in his former decision, plaintiff was not to be precluded from filing a new application, if he could procure evidence as to the existence of the granddaughter and that the money was actually hers.
In January, 1950, another application was filed and though the granddaughter was living at Seneca, Missouri, approximately 15 miles away from the place of the hearing, she was not produced as a witness. No explanation was offered for her failure to appear and no further evidence was offered as to her existence or ownership of the money. No records of any kind or character were introduced to show that any of the money belonged to the granddaughter. No witnesses other than claimant and wife were introduced to show the granddaughter, in fact, existed. Applicant was represented by counsel at the hearing and we have no explanation from counsel or claimant as to why the most essential evidence in the case was overlooked or ignored. There are so many inconsistencies, conflicts and vagaries in the testimony of applicant and his wife and such a complete absence of direct and positive evidence, both as to the existence of the granddaughter and her ownership of the money that the director could hardly be expected to arrive at any other conclusion than that the money had been transferred for the purpose of making applicant eligible for old age assistance. Upon failure to produce her or show some good reason for such failure, the inference would arise that if produced, her testimony would not support that of applicant and his wife. 20 Am.Jur. Evidence, Sec. 187.
Section 208.010 RSMo 1949, V.A.M.S. specifically provides that benefits shall not be payable to any person who has made a transfer of property for the purpose of rendering himself eligible for benefits. If the granddaughter existed and lived in Seneca, that fact could have been proved easily and beyond any question. If the money transferred, in fact belonged to her, It could have been proved by her and by records of the bank that deposits of $100 to $800 had been made in the account.
At no time is there any contention that the combined salaries of claimant and his wife exceeded $80 per week at the time they were building up the account in the bank of Seneca. If applicant and his wife were testifying truthfully, evidence was easily available to corroborate them. The fact that corroboration was not forthcoming, under these circumstances, could hardly be overlooked by the director of the State Department of Public Health and Welfare. We think there was substantial evidence to support the decision and findings of the director and that claimant in the case before us was awarded a fair and impartial hearing.
The judgment of the trial court should be reversed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.