Markowitz v. Markowitz

• Decision Date: 14 February 1927
• Docket Number: No. 15596.,15596.
• Parties: MARKOWITZ v. MARKOWITZ et al.
• Court: Missouri Court of Appeals

290 S.W. 119

MARKOWITZ v. MARKOWITZ et al.

No. 15596.

Kansas City Court of Appeals. Missouri.

February 14, 1927.

Rehearing Denied February 28, 1927.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

In the matter of the estate of Herman Markowitz, deceased. Claim of Tom Markowitz against the estate was allowed by the probate court, and Estelle Markowitz appealed. From judgment of the Circuit Court, for L. I. Markowitz, executor, plaintiff appeals. Reversed and remanded for new trial.

Strother, Campbell & Strother and Harry L. Jacobs, all of Kansas City, for appellant.

Walsh & Aylward, James P. Aylward, A. A. Ridge, Jerome Walsh, George V. Aylward, and Ben Terte, all of Kansas City, for respondent.

ARNOLD, J.

This action is for the recovery of money advanced, rent and license fees paid, and other expenses incident to the last sickness of Herman Markowitz, deceased. The suit originated in the probate court of Jackson county by filing therein for allowance a claim against the estate of decedent, Herman Markowitz, as follows:

                        "Estate of Herman Markowitz, Deceased
                                   In account with Tom Markowitz
                Jan. 10, 1924. To money advanced through
                 Sam Markowitz ............................ $ 450 00
                Jan. 18, 1924. To money advanced through
                 Sam Markowitz ............................   500 00
                To amounts due for rent at 613 Main street
                 Kansas City, Mo., for months of January
                 February, and March, 1924, at $125.00 per
                 month ....................................   375 00
                Jan. 22, 1924. To amount paid James Taylor
                 license collector, for license and notary
                 fees .....................................   151 00
                Jan. 1 to Jan. 26, 1924. To money paid out
                 for drugs, furnished deceased during last
                 illness ..................................    12 00
                Jan. 1 to Jan. 26, 1924. To incidentals for
                deceased ..................................    10 00
                Jan. 21, 1924. Paid St. Joseph Hospital....   140 00
                Feb. 6, 1924. Paid St. Joseph Hospital.....    71 00
                Jan. 10, 1924. Paid Dr. A. J. Lorie and Prof
                 Wiles for medical services furnished deceased
                 .......................................... 1,000 00
                Jan. 5 to Jan. 26, 1924. Paid to Mrs. C. S
                 Blanchard, for nursing $152.00, and $10.00
                 cash for deceased's personal wants........   162 00
                Jan. 5 to Jan. 26, 1924. Paid to Mrs. Gabbard
                 for nursing ..............................    70 00
                Jan. 5, to Jan. 26, 1924. Paid to Miss Bridgeman,
                 for nursing...............................    14 00
                Jan. 5 to Jan. 26, 1924. Paid to Mary Morris,
                 for nursing...............................     7 00
                Jan. 5 to Jan. 26, 1924. Paid to Eva Brazzell,
                 for nursing...............................    28 00
                Jan. 5 to Jan. 26, 1924. Paid to Rena McGurry,
                 for nursing ..............................    49 00
                                                           _________
                  Total .................................. $3,039 00
                "Affidavit to demand against estate."
                

The record discloses that Herman and Sam Markowitz, brothers, were engaged in the pawnbroker business, under the terms of a written agreement. Herman Markowitz died testate on January 26, 1924, leaving surviving him his widow, Estelle, two children; also his father, L. J. Markowitz, and two brothers, Tom (plaintiff herein) and Sam. Under the terms of decedent's will, L. J. Markowitz was duly appointed and qualified as administrator of the estate. An inventory was made by appraisers appointed by the probate court and the administrator took charge of the estate. Thereupon the claim above set out was filed by Tom Markowitz and allowance thereof was opposed by the widow, Estelle Markowitz. Upon a hearing in the probate court, the full amount of the claim was allowed, and Estelle Markowitz appealed to the circuit court of Jackson county, where the cause was tried de novo, resulting in a verdict and judgment for defendant. A motion for a new trial was overruled, and plaintiff has appealed to this court.

On April 23, 1925, Estelle Markowitz, as widow and one of the heirs at law of Herman Markowitz, deceased, filed an answer in the circuit court consisting of a general denial of the claim and demand filed in the probate court; and, as further answer, charged that plaintiff and his brother Sam, prior to the death of Herman Markowitz, and immediately thereafter, entered into a conspiracy to cheat and defraud the estate of Herman Markowitz of its possessions, holdings, and assets, by disposing of the same without the consent of the heirs or other parties interested therein ; and that by reason of the said conspiracy, the said estate has been cheated and defrauded of large sums of money, property, and other valuable assets. The answer further alleges that if plaintiff has any claim against said estate, the same has been paid before said claim was filed, and that plaintiff has received sufficient property from the assets of the said estate to amply repay and overpay any and all claims, demands, or debts claimed to be due plaintiff.

It appears that during the progress of the trial in the circuit court, plaintiff filed a reply to defendant's answer, though we do not find this reply of record. However, no point is made of this omission and it does not demand consideration herein.

Plaintiff urges respondent is without defense in this cause, for the reason that the answer filed by her in the circuit court is merely an attempt to plead a counterclaim which, not having been filed in the probate court, could not properly be filed in the circuit court, and that evidence in support of a counterclaim was improperly received. It is also urged the answer is an attempt to plead a tort, which, under the provisions of section 1233, R. S. 1919, cannot be raised by a counterclaim. It is appellant's contention that the answer, in fact, is a counterclaim, while respondent urges the contrary view, and that the answer pleads a conspiracy.

It was held in the case of Jones v. Moore et al., 42 Mo. 413, 419, that "a cause of action which wholly defeats the demand of the plaintiff cannot be a counterclaim." And in Holzbauer v. Heine, 37 Mo. 443, it is held that an answer pleading payment is not a counterclaim, the court saying:

"The counterclaim must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action. A counterclaim must contain the substance necessary to sustain an action on behalf of the defendant against the plaintiff if the plaintiff had not sued the defendant. It must have a tendency to show an independent cause of action, a claim existing in favor of the defendant against the plaintiff, arising either out of the contract or transaction sued on, or on some other contract. * * * Where the defendant has against the plaintiff a cause of action upon which he might have maintained a suit, such cause of action is a counterclaim. The parties, then, have cross-demands, and, in effect, there are two causes of action before the court, for trial in the same suit. Both parties are to a certain extent plaintiffs, and both defendants."

It must be conceded the answer is not quite clear as to what it does plead. We note it pleads: (1) A conspiracy; (2) that if plaintiff has a claim against the estate he has received sufficient property from the assets to pay such claim. The second paragraph, beyond doubt, pleads payment, but it is bottomed upon the first which pleads conspiracy and is dependent thereon for its effect. Under the ruling in the Holzbauer Case the answer may not be held to plead a, counterclaim. Appellant urges that as no counterclaim was filed in the probate court, none may be filed in the circuit court on appeal. But, as we have found the answer does not plead a counterclaim, this point demands no further consideration.

It is charged the court erred in giving defendant's instruction I for the reason that it is one as to general credibility, when, as shown by the record, the payment by appellant of some of the items of the claim is not disputed but is admitted by respondent. The items so designated are the bills of Dr. Lorie, who attended decedent in his last sickness, and of Miss Blanchard, a nurse. Both Dr. Lorie and Miss Blanchard testified they were paid by plaintiff and there was no testimony offered in refutation thereof. The point made by plaintiff is that the instruction complained of told the jury they might disregard the testimony of all witnesses and that this would include that of witnesses whose testimony was conceded to be true. In this connection it may be well to note that throughout this rather long record, respondent's counsel repeatedly said that respondent was admitting nothing; and she testified to that effect. In such situation and without passing upon the testimony, which is not within our province, we are not warranted in holding with appellant upon the point under consideration. The appellate courts have seriously questioned the propriety of such an instruction as is now under consideration, but we do not find any case holding such an instruction to constitute reversible error, under such facts as are here presented. We therefore rule against plaintiff on this point.

It is insisted the court erred in giving instruction J for respondent, as follows:

"The court instructs the jury that the burden of proof in this case rests upon the plaintiff, and he is required to establish each and every item of his claim by a preponderance of all the credible testimony in the case, that is, by the greater weight of all the credible evidence, and unless he has done so, your verdict must be for the defendant."

The objection to the instruction is that it tells the jury they must find for defendant unless plaintiff established every item of his claim by a preponderance of all the credible evidence. It is urged that such is not the law and the court erred in giving this instruction. We hold plaintiffs position in this respect is proper. It is noted plaintiff's claim...