inference presumption in Missouri

2024“Testimony of permissive use that is not believed does not cause the inference or presumption of adverse use to vanish.” Gault, 826 S.W.2d at 883 .

2024Gault v. Bahm, 826 S.W.2d 875, 881 (Mo.App. 1992).

1995Gault v. Bahm, 826 S.W.2d 875, 883 (Mo.App.S.D.1992); Meyer v. Pierce, 753 S.W.2d 79, 80 (Mo.App.E.D.1988).

1992Meyer v. Pierce, 753 S.W.2d 79, 80 (Mo. App.1988); Moravek v. Ocsody, 456 S.W.2d 619 (Mo.App.1970).

2019See Fike, 509 S.W.3d at 802 and England, 454 S.W.3d at 918 -19 and Clippard, 168 S.W.3d at 618 (all discussing the elements of a gift); see also Prange v. Prange, 755 S.W.2d 581, 593 (Mo. App. E.D. 1987) (“[w]here . . . a parent pays for property that is conveyed to her child[ ], an inference or presumption of a gift is raised”); Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011) (“LLC interests . . . are delivered through the execution of papers.”). 23 Similarly, the trial court could have also reasonably found from Husband’s testimony that, (1) a voluntary transfer of funds and/or property

1996Prange, 755 S.W.2d at 593 .

1971It is necessarily something beyond this relationship, however, which must exist as between husband and wife before it may be said that either is the fiduciary of the other within the meaning of ‘fiduciary’ or ‘confidential’ relationship necessary to be established as a basis for an inference or a presumption of undue influence.” Snell v. Seek, 363 Mo. 225 , 250 S.W.2d 336, 342 [8], Cases in Missouri have also indicated that physical incapacity is a factor to be considered in determining whether one party to a transaction is in a position of domination and control over the other.

1971It is necessarily something beyond this relationship, however, which must exist as between husband and wife before it may be said that either is the fiduciary of the other within the meaning of ‘fiduciary’ or ‘confidential’ relationship necessary to be established as a basis for an inference or a presumption of undue influence.” Snell v. Seek, 363 Mo. 225 , 250 S.W.2d 336, 342 [8], Cases in Missouri have also indicated that physical incapacity is a factor to be considered in determining whether one party to a transaction is in a position of domination and control over the other.

1976Duboise v. Railway Express Agency, Inc., 409 S.W.2d 108, 113 [2] (Mo.1966).

1969In a recent case, Duboise v. Railway Express Agency (Mo.) 409 S.W.2d 108, 113 , this court said: “ ‘The failure of an employer to call as witnesses or explain the absence of his employees who have knowledge of the facts in issue has often been held to justify an inference or presumption adverse to the party.’ Annotation 5 A.L.R. 2d 893 , 896. * * * ” and that, “ * * * more than twenty Missouri cases are noted in 68 A.L.R.2d 1 . c. 1075, that ‘it is permissible for counsel in a civil case, in his argument to the jury, to comment on the failure or omission of the adverse party to produce or exam

2019See Fike, 509 S.W.3d at 802 and England, 454 S.W.3d at 918 -19 and Clippard, 168 S.W.3d at 618 (all discussing the elements of a gift); see also Prange v. Prange, 755 S.W.2d 581, 593 (Mo. App. E.D. 1987) (“[w]here . . . a parent pays for property that is conveyed to her child[ ], an inference or presumption of a gift is raised”); Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011) (“LLC interests . . . are delivered through the execution of papers.”). 23 Similarly, the trial court could have also reasonably found from Husband’s testimony that, (1) a voluntary transfer of funds and/or property

2019See Fike, 509 S.W.3d at 802 and England, 454 S.W.3d at 918 -19 and Clippard, 168 S.W.3d at 618 (all discussing the elements of a gift); see also Prange v. Prange, 755 S.W.2d 581, 593 (Mo. App. E.D. 1987) (“[w]here . . . a parent pays for property that is conveyed to her child[ ], an inference or presumption of a gift is raised”); Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011) (“LLC interests . . . are delivered through the execution of papers.”). 23 Similarly, the trial court could have also reasonably found from Husband’s testimony that, (1) a voluntary transfer of funds and/or property

2019See Fike, 509 S.W.3d at 802 and England, 454 S.W.3d at 918 -19 and Clippard, 168 S.W.3d at 618 (all discussing the elements of a gift); see also Prange v. Prange, 755 S.W.2d 581, 593 (Mo. App. E.D. 1987) (“[w]here . . . a parent pays for property that is conveyed to her child[ ], an inference or presumption of a gift is raised”); Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011) (“LLC interests . . . are delivered through the execution of papers.”). 23 Similarly, the trial court could have also reasonably found from Husband’s testimony that, (1) a voluntary transfer of funds and/or property

2019See Fike, 509 S.W.3d at 802 and England, 454 S.W.3d at 918 -19 and Clippard, 168 S.W.3d at 618 (all discussing the elements of a gift); see also Prange v. Prange, 755 S.W.2d 581, 593 (Mo. App. E.D. 1987) (“[w]here . . . a parent pays for property that is conveyed to her child[ ], an inference or presumption of a gift is raised”); Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011) (“LLC interests . . . are delivered through the execution of papers.”). 23 Similarly, the trial court could have also reasonably found from Husband’s testimony that, (1) a voluntary transfer of funds and/or property

2011Long v. Askren, 874 S.W.2d 466, 471 (Mo.App.1994). ‘“The prevailing rule is that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence against them: the Amendment ‘does not preclude the inference where the privilege is claimed by a party to a civil cause.’ ” Johnson v. Missouri Bd. of Nursing Adm’rs, 130 S.W.3d 619, 629 (Mo.App.2004) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976)). “ ‘In civil eases, a witness’ invocation of his privilege against self-incrim

2011Long v. Askren, 874 S.W.2d 466, 471 (Mo.App.1994). ‘“The prevailing rule is that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence against them: the Amendment ‘does not preclude the inference where the privilege is claimed by a party to a civil cause.’ ” Johnson v. Missouri Bd. of Nursing Adm’rs, 130 S.W.3d 619, 629 (Mo.App.2004) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976)). “ ‘In civil eases, a witness’ invocation of his privilege against self-incrim

1992Fassold v. Schamburg, 350 Mo. 464 , 166 S.W.2d 571, 572 (1942); Johnston, 778 S.W.2d at 362 ; Gill Grain Co. v. Poos, 707 S.W.2d 434, 437 (Mo.App.1986); George v. Dickinson, 504 S.W.2d 658, 663 (Mo.App.1974). 6 Here, the defendants attempted to meet their burden and overcome the presumption of adverse use by offering evidence that the Gaults’ use of the road was permissive in origin and nature.

1992Fassold v. Schamburg, 350 Mo. 464 , 166 S.W.2d 571, 572 (1942); Johnston, 778 S.W.2d at 362 ; Gill Grain Co. v. Poos, 707 S.W.2d 434, 437 (Mo.App.1986); George v. Dickinson, 504 S.W.2d 658, 663 (Mo.App.1974). 6 Here, the defendants attempted to meet their burden and overcome the presumption of adverse use by offering evidence that the Gaults’ use of the road was permissive in origin and nature.

1992Fassold v. Schamburg, 350 Mo. 464 , 166 S.W.2d 571, 572 (1942); Johnston, 778 S.W.2d at 362 ; Gill Grain Co. v. Poos, 707 S.W.2d 434, 437 (Mo.App.1986); George v. Dickinson, 504 S.W.2d 658, 663 (Mo.App.1974). 6 Here, the defendants attempted to meet their burden and overcome the presumption of adverse use by offering evidence that the Gaults’ use of the road was permissive in origin and nature.

1992Fassold v. Schamburg, 350 Mo. 464 , 166 S.W.2d 571, 572 (1942); Johnston, 778 S.W.2d at 362 ; Gill Grain Co. v. Poos, 707 S.W.2d 434, 437 (Mo.App.1986); George v. Dickinson, 504 S.W.2d 658, 663 (Mo.App.1974). 6 Here, the defendants attempted to meet their burden and overcome the presumption of adverse use by offering evidence that the Gaults’ use of the road was permissive in origin and nature.

1980See also Lucas Hunt Village Co. v. Klein, 358 Mo. 1054 , 218 S.W.2d 595 (banc 1949); Wecht v. Anderson, 84 Nev. 500 , 444 P.2d 501 (1968).

1980See also Lucas Hunt Village Co. v. Klein, 358 Mo. 1054 , 218 S.W.2d 595 (banc 1949); Wecht v. Anderson, 84 Nev. 500 , 444 P.2d 501 (1968).

1980As stated in Schwab v. Brotherhood of American Yeomen, 305 Mo. 148 , 264 S.W. 690, 692 (1924), “To make out a case of implied waiver of a legal right, there must be a clear, unequivocal, and *654 decisive act of the party showing such purpose, or acts amounting to an estoppel on his part.” Whether acceptance of rent after knowledge of a breach of a convenant by a tenant be considered as a rebuttable presumption, Mobile Oil Corporation v. Burdo, 69 Misc.2d 153 , 329 N.Y.S.2d 742 (1972), or an inference of a waiver, In re Willow Cafeterias, 95 F.2d 306 (2d Cir. 1938), cert. den. 304 U.S. 567 , 5

1980As stated in Schwab v. Brotherhood of American Yeomen, 305 Mo. 148 , 264 S.W. 690, 692 (1924), “To make out a case of implied waiver of a legal right, there must be a clear, unequivocal, and *654 decisive act of the party showing such purpose, or acts amounting to an estoppel on his part.” Whether acceptance of rent after knowledge of a breach of a convenant by a tenant be considered as a rebuttable presumption, Mobile Oil Corporation v. Burdo, 69 Misc.2d 153 , 329 N.Y.S.2d 742 (1972), or an inference of a waiver, In re Willow Cafeterias, 95 F.2d 306 (2d Cir. 1938), cert. den. 304 U.S. 567 , 5