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JOHNSON v. JOHNSON

October 3, 1957

ALICE M. JOHNSON, PLAINTIFF,
v.
CLYDE H. JOHNSON AND FLORENE VIVIAN JOHNSON, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

On August 27, 1957, this case was tried to the Court without a jury, and at the conclusion of the trial the Court took the case under advisement pending receipt of briefs from the parties. The briefs have been received and the Court, having considered the pleadings, evidence, and briefs of the parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiff is a citizen of Oklahoma and resides in Oklahoma City. The defendant, Florene Vivian Johnson, is a citizen of the State of Arkansas and resides in the City of Fort Smith. The defendant, Clyde H. Johnson, at the time this action was commenced was a citizen of the State of Arkansas and was residing in the City of Fort Smith. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

In view of the nature of this case the Court is of the opinion that it should first set out the pertinent facts in chronological order, and in so doing the defendant, Florene Vivian Johnson, will be referred to as Florene and the plaintiff, Alice Johnson, will be referred to as Alice or plaintiff.

(a) The defendants, Florene and Clyde H. Johnson, met in 1933 in their home town of Lebanon, Missouri, and dated each other for a period of approximately three years. In 1936 they were married when Florene was 19 years of age and Clyde H. Johnson was 25.

(b) The plaintiff, Alice, who had previously been married and divorced, was married to H.C. Gates in St. Louis, Missouri, in 1942. Before marrying Gates plaintiff had worked as a waitress.

Plaintiff is now 53 years of age.

(c) Plaintiff's husband, H.C. Gates, died in 1952, leaving the plaintiff an estate of approximately $50,000 in insurance, cash, and securities. Subsequent to Gates' death plaintiff lived with her sister in Healdton, Oklahoma, where she worked as a cashier in her sister's restaurant. During the same period of time the defendants, Florene and Clyde H. Johnson, were living in Chickasha, Oklahoma, where he was engaged in the wholesale tobacco and candy business.

He told her that the uncle would not make the loan and apparently they returned to Oklahoma. Before making this trip Clyde H. Johnson had taken plaintiff by his home in Chickasha, Oklahoma, and she had seen the inside of the house.

The following events set forth under (e) occurred in 1954:

(e) On January 2, plaintiff loaned Clyde H. Johnson the sum of $9,226.86, which he was to use to build up his business. He promised to pay her 2 percent interest, which was the same amount she was getting at the bank.

On January 4, Clyde H. Johnson deposited $8,000 of this money in the First National Bank of Alex, Oklahoma, retaining $1,226.80 in cash.

On February 8, Clyde H. Johnson withdrew $2,000 in cash from the First National Bank of Alex, Oklahoma.

In February or March, plaintiff first learned that Clyde H. Johnson was a married man, but he told her that he and his wife were not living together and he was getting a divorce.

On March 29, Clyde H. Johnson withdrew $6,000 in cash from the First National Bank of Alex, Oklahoma.

On April 2, Clyde H. Johnson filed suit for divorce against Florene in the Grady County District Court at Chickasha, Oklahoma.

On July 17, Clyde H. Johnson obtained a divorce from Florene and a property settlement was incorporated in the decree. Under the property settlement Clyde H. Johnson received the home and a GMC truck. Florene received all the furniture, a 1941 Chrysler automobile, and $2,400 cash to be paid in monthly installments.*fn1

On July 30, plaintiff loaned Clyde H. Johnson the sum of $9,000.

In September, Florene moved to Fort Smith, Arkansas, where she lived with her brother, Verdon Bennett.*fn2

On September 17, plaintiff loaned Clyde H. Johnson $9,000.

On October 15, Clyde H. Johnson deposited in his business account in the Oklahoma National Bank at Chickasha, Oklahoma, the sum of $16,724.51, of which amount $14,469 was in cash.

In December, Clyde H. Johnson paid Florene the sum of $2,000. Apparently this was a payment on the $2,400 he owed her under the divorce settlement.

Clyde H. Johnson induced plaintiff to convey to him her 1953 Chrysler automobile worth approximately $2,500. (Plaintiff testified that this conveyance occurred in December of 1954. Actually it may have occurred in December of 1955, since plaintiff and Clyde H. Johnson were not married until July 13, 1955.)

In 1955, the events herein set out in (f) occurred:

(f) During the year Florene was employed at a photo shop in Fort Smith, Arkansas, at a salary of $35 per week.

On March 20, plaintiff loaned Clyde H. Johnson $1,400.

On July 13, plaintiff and Clyde H. Johnson were married.

On July 16, plaintiff loaned Clyde H. Johnson $6,000.

On July 18, Clyde H. Johnson deposited in his business account in the Oklahoma National Bank the sum of $6,403.57, of which amount $6,312.30 was in cash.

In October, plaintiff loaned Clyde H. Johnson $3,000. Apparently this money was obtained by the sale of some stocks she owned. The $3,000 was to be used by Clyde H. Johnson to purchase furniture. It is not clear from the evidence what became of the $3,000, since plaintiff testified that she accompanied Clyde H. Johnson when the furniture was purchased and he paid for the furniture by check.

The furniture purchased by Clyde H. Johnson included some chairs, tables, mattress and springs, a maple dinette set, a Mathes air conditioner, 27-inch TV set, vacuum cleaner, gas range, Westinghouse laundromat, refrigerator, TV lamp, and a large urn.

On December 26, Clyde H. Johnson mailed a check to Florene ...


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