From Casetext: Smarter Legal Research

RAPP v. RAPP

Kansas City Court of Appeals, Missouri
Mar 5, 1951
238 S.W.2d 80 (Mo. Ct. App. 1951)

Opinion

No. 21528.

March 5, 1951.

APPEAL FROM THE CIRCUIT COURT, PETTIS COUNTY, DEWEY THATCH, SPECIAL JUDGE.

Harry H. Kay, Eldon, for appellant.

S.W. James, Jr., Jefferson City, for respondent.


This suit seeks the cancellation of a change of beneficiary in a death benefit certificate issued to Robert Rapp by his employer, General Mills, Inc. The certificate was issued in December, 1941, naming Robert's wife, Inez, as beneficiary; on December 22, 1945, Robert, in the presence of the Personnel Director of General Mills, executed the written change of beneficiary designating his mother, Dorothy Rapp, as the principal beneficiary, and his father, Charles Rapp, as alternate beneficiary. The suit seeks the cancellation of the change on the ground of mental incompetency and undue influence. The cause was tried before the court, resulting in a judgment for cancellation. The defendant has appealed.

Error is assigned upon the admission of certain evidence and that there is no substantial evidence to support the finding that Robert did not have mental capacity to make the change, and was unduly influenced to do so by his mother. This necessitates rather an extended statement of the facts.

A broad outline of the evidence is to the effect that Robert and Inez were married in June, 1937, at which time she was 27 years of age and he was 20. They and their families had lived in or near Stover, Missouri, and had known one another for many years. Robert's father was opposed to the marriage because neither of the young people had any property or a home to move to, and he thought Robert should accumulate something before marrying any girl. However, Robert's mother signed the consent and they were married. During the next four years they lived on various farms in the Stover community; Robert's father assisted them by arranging for places for them to live, giving them two or three cows, and furnishing some money, and in 1939 he purchased a farm and gave it to Robert; in May, 1941, Robert and Inez decided to leave the farm and come to Kansas City where he entered a mechanical school and, after attending for three months, secured a position with General Mills, Inc., where he worked until he died in April, 1946. When he left the farm he told his father to take it and do whatever he wanted to with it. In the summer of 1943 an abrasion or spot developed on Robert's ear and in due time he went to Dr. Lapp of Kansas City who removed that "small pigmented lesion." It was the opinion of Dr. Lapp that this was "a most malignant type of lesion * * * one form of cancer * * * and a particularly dangerous type of growth." However, he did not tell Robert of his conclusion, but advised him that if a "lump" appeared on his jaw or neck he should go to a hospital for treatment. In June, 1944, a lump did appear and he eventually went to the cancer hospital in Columbia, Missouri, and was operated on by Dr. Sugarbaker. In a few weeks he returned to work, but in March, 1945, he again went to the cancer hospital and underwent another severe operation; the following July he returned to General Mills and worked until March, 1946, when his condition suddenly became much worse, and on March 28 he was brought by ambulance to his father's home in Stover and died April 9.

The plaintiff, Inez Rapp, testified that Robert had suffered from headaches since she had known him and working in the hot sun aggravated the condition; that when they visited in his parents' home they would criticize her and Robert because they were not doing more work and getting ahead; that his father thought Robert should remain on the farm and not go to Kansas City and would not assist him financially to make the move; that her sister, Mrs. Williams, loaned them sufficient money to go to Kansas City; that when they would return to Stover for a visit his parents continued to criticize her, and on one occasion the mother referred to her cooking as "hash"; this occurred in September, 1942; Inez had prepared a "pot roast" and when they were at the table Mrs. Rapp said, "we will pass the hash"; that Mr. and Mrs. Rapp criticized the way she and Robert disciplined their two children, both of whom were born after they moved to Kansas City; that his parents did not visit her when she was confined in the hospital at Kansas City at the birth of the children; that Robert was happy about the birth of the first child, who was born in February, 1942, but that he did not want the second child, who was born in November, 1943; that about this time his headaches became more frequent and intense and he had trouble sleeping; that this was about the time the spot was removed by Dr. Lapp; that about this time Robert's parents came to Kansas City to visit him for two or three days and they all returned to Stover, at which time the parents renewed their criticism of the manner in which she disciplined the children, and on one occasion Mr. Rapp said "she didn't know enough to pin the diapers on"; that they criticized the way she kept her house; that this criticism and fault finding continued until Robert's death. Apparently the first trouble she and Robert had was shortly after the second child was born; he brought her home from the hospital and they had a quarrel over his "spanking their boy"; that he left "in a fit of temper" and went to Stover for the week-end and when he returned he was still mad. On that occasion Inez' sister-in-law, Mrs. Raymond Rapp, was staying with her, she was not left alone. She then tells of Robert's first visit to the cancer hospital in 1944 and of the operation performed at that time; that he was in the hospital about a month, and after his release they stayed at her sister's home until he was able to return to work in October; that after they got back to Kansas City Robert "was changed," "was critical," "had more temper," "was in pain," "was aggravated by the children and was never satisfied"; that "things got pretty rocky"; that in March, 1945, he returned to the hospital for the second operation and when he was released he returned to the home of his parents; that she had been staying with her parents near there, and that she went to see him and stayed two or three days; that he was in much pain; that Dorothy Rapp told her that the children were too noisy and aggravated Robert and suggested that she take them to her sister's home, which she did; that the next day Robert went to Kansas City for two or three days, and upon his return they stayed at her sister's home until July 7; that during that time they visited his parents, and Dorothy Rapp again complained of the children's being spoiled, noisy and extravagant; when asked how his parents treated her when she was in their home, she said: "Well, of course, it was just a constant little nick here and a nick there * * * the work wasn't kept up like it should be." In July (1945) Robert returned to Kansas City without her and there was a period of about two months that she did not hear from him and did not know where he was; that she asked his parents about him and they told her they did not know where he was; that she requested her brother, Glenn Martin, to go to Kansas City to see if he could locate him; that Martin found him at work at the Mill and visited with him, but Robert did not or would not tell him where he was living. Apparently Inez and Robert did not live together after he came to Kansas City in July, 1945. She also testified that she found a letter in a trash can in Robert's room signed "Louise" (the date of which is not given); that after Robert's death she found a picture of Louise Leedom in his billfold; that she saw this woman in the Rapp home when Robert was dying; that she last saw her husband about 6 p. m. before he died during the night; that Dorothy Rapp told her at that time to go to her sister's home and let Robert die in peace. There are other general statements by Inez to the effect that Robert's parents were not kind to her, but they are of such a general nature that we deem it unnecessary to go into greater detail. On cross-examination she admitted that Mr. Rapp had paid $75 on the hospital bill for the birth of the first child; that he had loaned Robert money several times and that it had not been paid back, that Robert said all he got that way was all he would get; that in February, 1945, she wrote a letter to Robert's parents advising them that Robert was threatening to divorce her and asked them to come up and see what they could do about it; that they did come and brought her sister and brother with them, but that the matter of divorce was not discussed, and after a visit of two or three days they all returned to the Rapp home in Stover, and shortly thereafter Robert went to the cancer hospital for his last operation. She did not know Robert had insurance until Dorothy told her about it the evening before he died.

We do not find in her testimony any specific unkind remark Robert ever made to her. She does speak of him as being "mad," "nervous," "critical," without detailing any fact as a basis for such a general conclusion. She is very critical of his parents because of their treatment of her. But let us consider the statement of Mr. Rapp that "She didn't know enough to pin the diapers on"; she identified a kodak picture of herself and Mr. Rapp attempting to put a diaper on the baby, they were both laughing; Mr. Rapp testified the whole thing was all in fun. From an examination of the picture, it is reasonable to infer that the only person entitled to be offended because of that episode is the baby.

It appears from the record that sometime after Robert's death Inez sued his mother and father for alienation of affection; the outcome of that case is undisclosed and is of no importance. But it lends support to the conclusion that many of the small conflicts and unpleasantness of married life have been greatly magnified. The trial judge recognized this because, in reviewing the evidence before rendering his decision, he stated: "I think that the strained relationship between the parties has grown more out of the imagination than out of factual matters." We concur in that conclusion.

Mrs. Williams testified that she was a sister of Inez; that she had known Robert all his life, and that he had always had headaches; that she loaned them some money when they moved to Kansas City; that she came to Kansas City with her brother and Mr. and Mrs. Rapp in answer to Inez' letter that Robert was threatening to divorce her, but the matter of divorce was not discussed; she did say that "We found them very much disrupted in their household. Bob had been hard to get along with and Inez had been sick, the baby was little and things were just generally disrupted;" that after a day or two they all returned to Stover; that she could not remember any ridicule or criticism of Inez by Mr. or Mrs. Rapp but they simply had "an overbearing attitude." She tells of one occurrence sometime after the second child was born. She saw Inez and Robert at some place, not disclosed by the record, and testified that "Bob just wasn't Bob at all: he was exactly opposite, he was short tempered; he didn't like Ruthy and I remember one time distinctly Roy was playing on the floor, he was a little bit noisy and Bob said something to him. I didn't understand what he said. Bob kicked the little child clear across the house and his mother caught him. That wasn't Bob." It is of interest to note that Inez did not mention any such occurrence in her testimony. She also testified that she saw Louise Leedom at the Charles Rapp home a few days before Robert's death; that she was introduced to the Leedom woman by Robert's brother; that on that occasion Robert was in severe pain, but he recognized her and called her by name.

Glenn Martin, plaintiff's brother, testified that he went to Kansas City in late November, 1945, to locate Robert as Inez had not heard from him for approximately two months; that he found him at work at the Mill; "I talked to him, he talked to me, but I couldn't find or he wouldn't tell me where he was going to stay that night, I couldn't see him that evening. I stayed all night in Kansas City * * * and the next morning I was at the Mill at work time and he was down at the Mill. I saw him a few minutes before he went to work; he was very poor, of course, his face was paralyzed; he looked pretty bad, but he wouldn't talk very much. What he did say seemed to be all right, but he didn't want to talk to me or tell me where he was. * * * He was very friendly, but he didn't tell me where he was." This witness further testified that Robert had always had headaches and couldn't stand the hot weather; that he took Robert to the cancer hospital the first time he went and also brought him away after the operation; that he also went to see Robert while he was in the hospital after the second operation; that from the time Robert went to Kansas City in 1941 until his second operation, his attitude toward his family "was all right so far as he could see"; that after the second operation, Robert knew his condition was serious, felt that his time was coming to an end rapidly, was nervous and had a desire to be away from the folks he knew and his friends; that he had seen Louise Leedom at the Charles Rapp home on two occasions; that after the first operation the right side of Robert's face and mouth were paralyzed; that he was with Robert all summer after the second operation (1945) until he went to Kansas City. The last question asked this witness was: "Q. Now, * * * it was your impression all the time that Bob's mind was all right? A. I was with Bob a whole lot and as far as I could see, outside his nervous condition, due to a lot of pain and discomfort, he seemed to me to be rational."

Witness Stevens testified that he was a funeral director at Stover; that in the latter part of March, 1946, at the request of Charles Rapp, he made a trip to Kansas City with his ambulance to bring Robert back to Stover; that Charles Rapp went with him; that he went to an address on East 7th Street, which Charles Rapp designated, and found Robert in an apartment there; that Louise Leedom and her brother were in the apartment at that time; that her brother carried Robert down the stairs; that they placed Robert in the ambulance and brought him back to Stover to the home of his father. On cross-examination he testified that Louise Leedom's brother lived in the apartment where Robert lived; that when he went to get Robert at the apartment he was rational mentally; that he had seen Robert in the summer of 1945, at which time Robert re-built a trailer for him, and he was his normal and usual self; that he saw him frequently and talked to him during the summer of 1945; that he did not notice any evidence that Robert had vomited before his death.

Ben Banner testified that he had known the parties to the suit for many years; that in 1945 he was working in Kansas City and frequently saw Robert Rapp; that on three or four occasions he saw Robert with one particular woman, identified as Louise Leedom; that when he would see Robert in a tavern with her, Robert did not seem to want to talk to him, and did not introduce him to the woman.

Roy Dilcon testified that he knew Mr. and Mrs. Charles Rapp and at various times talked to them about Robert's condition; that at one time Charles Rapp told him that the doctor had advised them that Robert might become insane; that he had seen Louise Leedom at the Rapp home sometime in the winter of 1945, and that Robert was there with her. On cross-examination he stated that he had known Robert all his life, and that he saw and talked with him about the first of December, 1945; that he did not observe any difference in Robert's mental condition; that he carried on a conversation normally and rationally.

Ernest Hughes stated that he knew all the parties to the litigation; that in 1945 he was re-roofing the home of Charles Rapp and saw Robert there at that time; that he talked with him and considered him normal, and did not notice anything unusual in his actions or conversations.

Dr. Lapp testified, by deposition, that he examined Robert on September 10, 1943, and found that he had a "small pigmented lesion" on his ear. "In my opinion it was a melanoma, or a most malignant type of lesion. * * * It is one form of cancer * * * and is a particularly dangerous type of growth. The melanomas can spread through the lymph system or the blood vessel system. * * * I removed the lesion with a margin of the skin and with a depth of tissue. * * * I saw him for dressings until October 23, at which time my record shows that the wound was healed. * * * I saw him the next year, June 30, 1944. He consulted me at that time about a small lump in his neck * * * just back of the right jaw, immediately below the lobe of the ear. * * * My impression was he had a large lymph node. * * * It could be a malignant growth. We assume they are malignant until we prove otherwise. * * * I urged him to have it removed. Q. Did you see him after that date? A. No, sir. * * * Q. Do these metastases effect the brain? A. Well, I can't say that as a result of my own experience. They are rather rare in a man's life. * * * Q. The last time you saw the patient was June 30, 1944? Was it possible at that time for you to tell there was any brain involvement? A. there was no evidence of it at that time as far as I noted."

Dr. Sugarbaker testified, by deposition, that he was formerly the head of the Cancer Clinic at Columbia, Missouri, and was chief surgeon from January, 1942 to March, 1947, and was medical director from 1945 to 1947 and specialized in the treatment of cancer. Robert Rapp first came to the hospital on June 31, 1944. He examined Robert on that occasion and diagnosed his condition: "Well, he had a melanoma, * * * (but) his condition was in general excellent. There was no longer any visible evidence of the original tumor, and the condition for which he presented himself was a lump behind the angle of the right jaw of approximately three months duration. * * * We did a test * * * and obtained a diagnosis of metastatic melanoma. * * * He was operated on August 7, 1944. * * * we did a wide removal of the scar on his ear, * * * no evidence of residual tumor was found in that scar, and his post-operative course following both of these operations was uneventful. * * * a radical removal of the glands in the neck consists of a removal of all structures of the neck inclusive of the internal jugular vein and exclusive only of the common carotoid artery and its branches and the vagus nerve. A neck dissection done in that manner is capable of removing all of the lymph nodes in a single side of the neck." In a short time Robert returned to his work, but on January 22, 1945, he returned to the clinic and the doctors found a small mass in the tissues beneath the left jaw, and on March 2 a radical operation was performed on the left side of the neck similar to the prior operation, but there was no evidence of melanoma and the post-operative course was uneventful; "then he was seen in June of that year (1945); * * * and at that time he was working and said that he had no complaints. Then on 9-19-45 skin nodules appeared on the right upper arm. Q. Do those indicate a melanotic condition? A. These did, because one was proved to be so." He then described the tendency of this type of tumor to spread to various parts of the body. "Q. What did you advise him as to his condition? A. We did not advise him, as I recall, as to his condition. We would probably at that time * * * have attempted to distract his attention from it rather than attract his attention to it. Q. Was there anything that could be done for him at that time? A. No, sir. Q. Now, did you see him at any later date? A. Yes, he was in on the 19th of December (1945) when more nodules were noted and some of these had now occurred on the chest well. Q. What was his general condition otherwise at that time as to health? A. His general condition appeared to be good. That, however, is characteristic of patients who have widespread melanoma. They appear to be in excellent health as a rule until shortly before death and then the death usually results rather suddenly and their general condition fails very rapidly. * * * Q. Did you notice any marked change of personality in the man during the time he was treated at the hospital? A. Yes, that is right, we did. Q. And what was that change of personality, Doctor? A. Well, he seemed to be sullen; the chart records that there was some `abnormal mental reaction'. I believe that was a note I made at that time, and my recollection — my interpretation, let's say — of that rather brief note would be that he was sullen, that instead of his usual amiable self — he had been a very easy patient to get along with — he was very difficult. He objected to be examined; he objected to removing his shirt in order to have these nodules inspected; objected to being questioned about what he was doing, where he was working, and so on." These objections were made at the time of his visit on September 19, 1945. "Q. Doctor, do patients who have melanoma frequently develop brain tumors? A. They certainly do. Q. And what is that, Doctor? A. No one knows. Q. In developing a brain tumor does that frequently produce insanity or a condition of unsound mind? A. It depends on the location of the tumor, or the site of origin of the tumor. Q. A tumor developing in the brain and producing a condition of unsound mind or insanity, would that be noticed in changes in the man's actions and demeanor? A. Yes, it would. Q. What changes if any, would be noted? A. Personality changes. Q. Personality changes, — A. Let me qualify that. Personality changes or neurological signs, that is, changes in his motor function or bodily sensations, reflexes and so on. There is some evidence that bears that out later on in the report of his death, manner of his death. Q. Complete and state what those were, if you know. A. The chart bore the note — we didn't see Robert at the time of his death — but the note written 4-8-46 on the chart said: `Died with vomiting and a right hemiplegia.' Now, vomiting is one of the signs that usually accompanies an intracranial tumor, a brain tumor; and a right hemiplegia would tend to localize the site of such a possible tumor as being in the left side of the brain since the motor tracts cross. * * * Q. Now, doctor, the condition that you found in the treatment of Robert J. Rapp, and the removal of the glands in both sides of his neck, the later appearance of the skin nodules and the subsequent appearance of these nodules in the chest wall, and noting the change in the attitude and demeanor of the patient over the period of time when he first came to visit you, or first came for treatment and examination, and the attitude and demeanor exhibited in the later stage of his examinations and treatment, and the information gained as to the conditions at the time of his death, would you say that in your opinion the (patient) had had a mental condition which was brought about by these melanotic tumors? A. Very definitely. The cause of his death as recorded in the chart is attributed to spread of the tumor to his brain and I believe the chart bears that as the cause of death. In other words, the patient was supposed to die of disease, primarily disease of the brain, in 1946. Q. And when, in your opinion, Doctor, from your observation and treatment of this patient, would you say the onset of this mental condition occurred? A. Well, I can only say that so far as our observations went we recorded that approximately seven months prior to his death. Q. That there was definitely a mental condition, an unsound condition of mind, seven months prior to his death? A. Yes. Q. Would you say during that period of time, Doctor, that the unsound condition of mind would become progressively worse? A. Oh, yes, I think so. May I qualify that? Q. Yes. A. That the unsound condition of his mind would become progressively worse unless something happened to the tumor, and I believe that eventually did happen. I believe that, as I understand it, he was in pretty good health until a very short time before his death and, as I mentioned before, one sees that very commonly in melanoma. Particularly is that true of a brain metastasis. I think his death was suddenly brought about by hemorrhaging into the tumor. The melanoma itself is slowly growing, the changes in the neurological signs that it produces are slow in developing, but then suddenly everything is brought to a final conclusion by a hemorrhage into the tumor. Q. Could you say from your observation and treatment of this patient as to what degree the condition of his mind had developed in December of 1945? A. No, sir; * * * I think it would be impossible to do that on the basis of brief clinic visits. Q. You would have to determine that from daily observation? A. That is correct. Q. But in your opinion, as I gather from your testimony, that Robert J. Rapp was definitely of unsound mind from and after September of 1945? A. I believe that is so." (Italic supplied.)

Defendant's Evidence

Mr. Cowan testified that he had been employed in the office of General Mills as Personnel Director since 1937; that he knew Robert Rapp when he worked for the company from 1941 until his death in April, 1946; that it was a part of his duties to take care of the change of beneficiaries in the policies carried by the company when requested by the employees; that he witnessed the signature of Robert Rapp to the change of beneficiary; that at the time Robert made the change he discussed the matter with him and tried to discourage him in making the change, but Robert told him "he was having family trouble, * * * he said he wanted it that way and he thought his parents could do a better job of looking out for the children if something happened to him than his wife could. * * * Q. At that time did you notice anything peculiar or different about him so far as his mental actions were concerned than you had observed before? A. Of course, I knew for some little time he had been having family trouble. Q. Did he talk rationally to you at that time? A. Oh, yes. Q. Was there anything about his conversation or conduct that lead you to believe he was not normal mentally? A. No, nothing that I could determine." The transfer of beneficiary was made on December 22, 1945, and Robert continued to work until about the 1st of March, 1946. On cross-examination he testified that at the time of the transfer he told Robert the money should go to his children and that Robert told him his parents could take care of their needs better than his wife could; that he (Cowan) did not notify the plaintiff of the change of beneficiary.

Charles Rapp testified that he lived at Stover, Missouri, was 73 years of age, and was the father of Robert Rapp; that he did object to the marriage of Robert and Inez because he thought Robert was too young, didn't have anything, had no home to offer the girl, and that he advised that if he wanted to marry her he should save money and get something to marry on as it wasn't right to take a girl out of a home and no place to take her; that he never expressed any dislike for Inez; that he did not have any dislike for her; that after they were married he helped them in numerous ways, helping them to get places to live, giving them money, giving them seed for crops, giving them livestock, loaning them machinery and in other ways; that he purchased what is known as the "Dill farm" and made the deed to Robert; that Robert went away and left the place and went to Kansas City to mechanical school; that he cared for the place after Robert left, cutting the wheat crop and giving Robert all the money from the crop; that after Robert and Inez went to Kansas City they visited back in Stover; that Inez came back alone on numerous occasions, and she always came up to his home as well as to her own relatives who lived a few miles from him, often staying overnight at his place; that while in Kansas City, Inez wrote him and his wife a letter saying that she and Robert were having trouble and that Robert was wanting to leave her; that he and his wife, and Inez' sister and brother went to Kansas City to see what the trouble was; that when they got there everything seemed to be all right and relations were pleasant between everyone; that Robert had a lump on his ear and they advised him to go to a hospital; Robert went to the hospital at Columbia and was later operated on; that at the time he was operated on, he and his wife took Inez to Columbia to be with Robert and furnished her room and board while there; that after Robert returned from the hospital he stayed at both his place and at Inez' relatives; that he brought Robert from Kansas City the latter part of March, 1946, and he died April 9; that they cared for him at his home at that time, and that he paid all funeral bills and ambulance bills; that during his last illness Robert did not vomit at any time and did not vomit at the time of his death; that he never at any time discussed with Robert or with Dorothy E. Rapp the matter of Robert's insurance; that Robert never at any time mentioned insurance to him; that he considered Robert's mind as clear as it ever was right on through until the time of his death. On cross-examination he stated that so far as he knew his relations with Inez were always pleasant and that he never had a quarrel with her in his life; that he thought Inez should be more strict with her children; that the remark about Inez not knowing how to pin on diapers was in fun; that he, his wife, Robert and Louise Leedom went to Columbia on one trip for a checkup; that the matter of insurance money was never mentioned; that since the death of Robert there had been a strained relation between him and Inez and her people.

Defendant, Dorothy Rapp, testified that she was 64 years of age; that when Robert and Inez were contemplating marriage she signed her consent to the marriage; that after the marriage she thought the relations between Inez and her were pleasant; that she did not consciously make any discrimination between Inez and any of her other daughters-in-law; that she never made fun of her cooking; that she never complained about the way Inez raised her children or kept house, but she may have offered some suggestions; that after such suggestions Inez continued to visit in their home; that when Robert was talking about going to Kansas City she suggested that they sell their stock and let Robert go up and go to school and Inez stay with her folks until they were settled and had some means of support, but she did not make such suggestions with any intention of separating Robert and Inez; that after such suggestion Robert and Inez visited in the home and stayed several days at a time, Inez sometimes visiting there alone; that in February, 1945, she received a letter from Inez, and she and her husband went down to see Inez' relatives; that the letter was the first intimation she had had of any trouble between Robert and his wife; that she went to Kansas City with her husband and Inez' brother and sister; that Inez met her at the door and told her not to tell Robert that she had sent for them; that in the letter Inez said Robert wanted a divorce and wanted the boy Leroy, and also mentioned about Robert having a knot on his jaw; that they suggested to him that he should go back to the hospital; that so far as she knew relations between all of them were pleasant; that they all came back to Stover and Robert and Inez stayed all night with them on the night they returned; that her husband, Inez and Robert and her youngest daughter went to Columbia with Robert; that after returning Robert first came back to their home and in about a week Inez and the children came up; that the little girl was about two years old and was noisy and seemed to make Robert nervous; that she suggested to Inez that it would be better for her to take the children and go back to her folks and let Robert be quiet; that after that incident Robert later went to Kansas City and then went to Inez' relatives where she was; that shortly afterwards Robert and Inez went back to Kansas City and got their furniture and moved it to the house on the Dill place; that after that they visited back and forth at her house and Inez' relatives, and there was no unpleasantness between them; that about July 7, 1945, Robert went back to Kansas City to see if he could get work and Inez stayed at her relatives; that while Robert was in Kansas City at that time Inez visited in her home once or twice; that after Robert went to Kansas City he wrote her and also wrote Inez telling them that he had a boarding place; that Robert came down to Stover with Louise Leedom; that she had never seen or heard of Louise Leedom before; that Robert introduced Louise as the lady he was boarding with; that she fixed supper for them, and Mr. Rapp and Robert went down town to buy Robert some clothes; that he and Louise went back to Kansas City the next day; that Louise wrote her a card after she got back thanking her for her hospitality and giving her her address; that she then wrote Louise a letter and told her that she would rather she wouldn't come back any more as Robert's wife and family were there, and it would cause talk in the community; that in December when Robert was due to go back to Columbia for a checkup, she got a letter from Louise asking if it would be all right for her to come back with Robert because she was afraid if he had tire trouble it would be hard for him to fix the tire alone; that she then wrote Louise and told her she guessed it would be all right for her to come; that Louise and Robert did come and stayed overnight and then she, Charles Rapp, Louise and Robert went to Columbia for Robert's checkup; that Louise was never in her home again until robert was brought back from Kansas City the last time in an ambulance; that she never told Inez Rapp that she, the witness, and Louise Leedom would get together and determine what to do with Robert's insurance; that she did not tell Inez that she was glad her boy was dead; that the first time she ever heard that Robert had insurance was in March, 1946, when he came down to go to Columbia for a checkup; that on the morning before he and his father left for Columbia, Robert came through the kitchen and took from his coat pocket a paper and said, "Here, Mom, take care of this"; that she asked him what it was, and he said, "That is something in case something happens to me you will get a little something from the Mill"; he laid the paper on the table, and nothing more was said about it; that the paper he laid on the table was the change of beneficiary in the benefit certificate; that up to that time she had never heard a word about insurance or death benefits or anything else of that nature mentioned by Robert; that it was her expectation that the children should have the money sometime when they are old enough to know where it came from; that she never at any time asked her son Robert to make out any insurance in her favor or to change any that he had; that after the death of Robert, the relations between her, Inez and her family had been strained; that Inez would not speak to her on the street and that Inez would direct the children around her if they met her on the street; that at no time did she ever notice anything about Robert's actions or talk that indicated there was anything wrong with his mind; that Robert talked rational up to the time of his death except when he was in a coma right at the last; that he did not vomit at the time of his death nor at any time during his last illness; that she never gave Dr. Sugarbaker any information to the effect that Robert vomited at the time of his death. On cross-examination she stated that she had told Inez that she thought her children were spoiled because she couldn't sleep at night but kept getting up and down with them; that she thought the children were extravagant with food; that on only one occasion did she say anything about it; that Robert did not want to go through the second operation, but she urged him to have it; that she received the $1,000 from General Mills in about a week after Robert's death; that she had not notified General Mills of his death and wasn't expecting the remittance; that before she received the payment she had no communication with the company; that about a week or a week and a half after she received the money she told Inez that she had received it; that she had never discussed the matter of insurance with Robert; that on the night Robert died she told Inez that Robert had changed his insurance and also told her that Louise had said Robert wanted the children to have it.

Witnesses Orlin Merriott and wife, and Elvin Merriott and Mr. Geary all testified that they had known Robert most of his life and had seen and talked with him during the year 1945, and could see nothing different or unusual about his mental faculties; that they had also seen him within the last few hours before his death and observed no vomiting.

This is a suit in equity and we will consider the case de novo and reach our own conclusion as to the facts, giving due deference to the findings of the chancellor where there is a conflict in the oral testimony and the credibility of witnesses must be determined. Cobble v. Garrison, Mo.Sup., 219 S.W.2d 393, 396; A. A. Electric Machine Co. v. Block, Mo.App., 193 S.W.2d 631, 635; Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461; Farr v. Lineberger, Mo.Sup., 207 S.W.2d 455.

We must keep in mind that the burden of proof to establish a lack of mental capacity and undue influence was on the plaintiff, and that a court of equity will not exercise its extraordinary powers to vacate or set aside such transfer, except in a clear case, where the evidence of mental incapacity or undue influence is clear, cogent and convincing. Ulrich v. Zimmerman, 349 Mo. 772, 163 S.W.2d 567, 571.

Undue influence has been defined to be such influence over the grantor as in law is considered to be force, coercion, overpersuasion and which destroys the will power or free agency of a grantor to act. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135. To be effectual to invalidate this change of beneficiary undue influence must have been in active exercise at the time of the change, and with such potency that the change was not the action of Robert Rapp, but was the act of his mother. Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, 54; Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 818. Without again reviewing the evidence it is our conclusion that there is no substantial testimony of undue influence by the defendant. The evidence is that neither Inez Rapp nor Mr. or Mrs. Rapp knew Robert had this benefit certificate until long after the change was made. It seems to us that the evidence fails to even approach the fulfillment of the strict requirement of proof to justify the setting aside of the transfer on the ground of undue influence. Of course it is not necessary to prove undue influence by direct and positive evidence; it may be inferred from facts and circumstances in the case, but these facts and circumstances must be convincing; mere suspicion of or opportunity for undue influence are insufficient. Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 17, 23. Under the evidence in this case it would be mere speculation and conjecture to hold the change was made because of undue influence.

We now consider the allegation that Robert did not have mental capacity to make the transfer. Does the evidence meet the burden of proof required? It takes no more mental capacity to change a beneficiary in an insurance policy than is necessary to make a will. McAllister v. Security Benefit Ass'n, Mo.App., 261 S.W. 343; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698. The legal test as to mental capacity, is whether, at the time of the change of beneficiary, Robert had sufficient mental capacity to understand the nature of the particular transaction and did, with such understanding, voluntarily make the change. McCoy v. McCoy, supra. Stated another way, he must have had sufficient mental capacity to understand the ordinary affairs of life, the nature and extent of his property, who comprised the object of his bounty, and the fact that by the instrument he executed he was giving his property to the person named therein. Adams v. Simpson, Mo.Sup., 213 S.W.2d 908, 911. We must also keep in mind that there is a presumption that every person is same until the contrary is proved. Dunn v. Dunn, Mo.App., 216 S.W.2d 141.

All of the lay witnesses, for both plaintiff and defendant, except Mrs. Williams who was not asked about it, gave an opinion that Robert was rational and of sound mind at all times up to within a few hours of his death. These witnesses had known Robert all of his life and had associated with him during the year 1945; had conversed with him and had observed him at work and at leisure, and under such circumstances it was proper for them to express an opinion as to his mental faculties. Bucholz v. Cunningham, 340 Mo. 302, 100 S.W.2d 446, 449. The only evidence as to what took place at the time Robert executed the change came from the witness Cowan, who was personnel director of General Mills, and who had seen and observed Robert for two or three years prior to the time of the transfer. The substance of Cowan's testimony is that Robert came into his office for the purpose of executing the change of beneficiary and explained to him that he was having family trouble and wanted to change his beneficiary to his parents; Cowan discouraged him in doing so, reminding him of his obligation to his children, but Robert told him that he thought his parents could do a better job of looking out for the children if anything should happen to him than his wife would; that Robert talked rationally and that he could see nothing about him which indicated that he was not normal mentally; after the transfer was made Robert returned to his work and continued to work for approximately two months before he was taken to his home in Stover. It is not for us to say whether Robert's actions in making the transfer were wise or unwise; he had the right to make it, if he had sufficient mental capacity to understand what he was doing.

The mere fact that Robert and his wife had not been congenial for several months before the transfer; that he was afflicted with an incurable disease; that he was nervous, irritable, sullen, given to fits of temper, and that he became enamored of his landlady, if so, yet such facts fall far short of constituting substantial evidence that he did not understand the nature and effect of the transfer and that it was made voluntarily. A reading of the opinion in Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72, and the cases therein discussed, demonstrates that it takes much more than ill temper, moody and eccentric conduct, to make a submissible issue of mental incapacity.

However, plaintiff stresses the testimony of Dr. Sugarbaker. In answer to a hypothetical question, the doctor did say that Robert had a mental condition and that this mental condition had existed for approximately seven months prior to his death; the final question and answer on this proposition is; "Q. But it is your opinion, as I gather from your testimony, that Robert Rapp was definitely of unsound mind from and after September of 1945? A. I believe that is so." In arriving at that opinion, he had taken into consideration information given him by someone, not disclosed in the record, that Robert died with vomiting, and he stated that vomiting is one of the signs that usually accompanies a brain tumor. However, all of the witnesses, except one, who was with Robert during the last days of his illness, testified that he did not vomit. The only exception to that testimony is the evidence of Glenn Martin, who said he was at the Rapp home a few days before Robert's death and that Mr. or Mrs. Rapp told him that Robert had become very ill from eating some ice cream and they had sent for Dr. Gunn. Dr. Gunn did not testify. It also appears that the doctor's opinion was based, in part, on the assumption that "the cause of his death as recorded in the chart is attributed to spread of the tumor to his brain and I believe the chart bears that as the cause of death." We do not know what "chart" the doctor was referring to but assume it was one kept at the cancer hospital. If so, that record was made from information furnished by someone not disclosed by the evidence, because the doctor testified that they did not see or examine Robert after December 19, 1945. Thus two of the assumed facts upon which Dr. Sugarbaker based his opinion are not supported by the evidence. Furthermore, the doctor was asked what Robert's general condition was when he appeared at the clinic for a checkup on December 19, three days before the transfer was made, and he stated: "His general condition appeared to be good." Concerning this same visit, he was asked: "Q. Could you say from your observation and treatment of this patient as to what degree the condition of his mind had developed in December, 1945? A. No, sir; * * * I think it would be impossible to do that on the basis of brief clinic visits."

Since the doctor's evidence was given by deposition, we are in as good a position to weigh his testimony and to determine the value of his opinion as was the trial court. When all the evidence is considered, we are of the opinion that it is insufficient to support the finding that Robert Rapp did not have mental capacity to make the transfer. We have read the cases cited in the briefs and they announce well recognized principles of law controlling a case of this nature, but it is also well recognized that each case must be decided upon its own facts. Ulrich v. Zimmerman, supra.

The record discloses that shortly after the death of Robert $1,000 of the amount due on the certificate was paid to defendant, Dorothy Rapp; that thereafter the balance due was paid to the clerk of the circuit court and remains in his hands. This amount is $753.21.

From what we have said, the judgment should be reversed and the cause remanded with directions to dismiss plaintiff's petition and to order the clerk to pay to defendant, Dorothy Rapp, the balance of the fund now in his hands. It is so ordered.

All concur.


Summaries of

RAPP v. RAPP

Kansas City Court of Appeals, Missouri
Mar 5, 1951
238 S.W.2d 80 (Mo. Ct. App. 1951)
Case details for

RAPP v. RAPP

Case Details

Full title:RAPP v. RAPP

Court:Kansas City Court of Appeals, Missouri

Date published: Mar 5, 1951

Citations

238 S.W.2d 80 (Mo. Ct. App. 1951)

Citing Cases

Metro. Life Ins. Co. v. Baker

Under Missouri law, the test used for determining whether Mr. Baker as grantor had sufficient mental capacity…

Willis v. Willis

Being mindful of the foregoing and of the holding that, even though insanity is not pleaded affirmatively…