Moffett v. Commerce Trust Co.

• Decision Date: 11 July 1955
• Docket Number: No. 44091,No. 1,44091,1
• Citation: 283 S.W.2d 591
• Parties: Louise McGrew MOFFETT, as an Individual and Executrix of the Estate of Thomas S. Moffett, Deceased, Appellant, v. COMMERCE TRUST COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 591

283 S.W.2d 591

Louise McGrew MOFFETT, as an Individual and Executrix of the Estate of Thomas S. Moffett, Deceased, Appellant, v. COMMERCE TRUST COMPANY, a Corporation, Respondent.

No. 44091.

Supreme Court of Missouri, Division No. 1.

July 11, 1955.

Motion for Rehearing and to Transfer to Court en Banc and

for Stay Order Denied Oct. 11, 1955.

Motion for Rehearing and to Transfer to Court en Banc Denied

Nov. 14, 1955.

Martin J. O'Donnell, Kansas City, for appellant.

Hugh M. Hiller, Philip J. Close, Kansas City, for respondent.

HYDE, Judge.

Action for damages in the amount of two and one-half million dollars. Motion to dismiss plaintiff's amended petition was sustained for failure to state a cause of action and for other legal grounds stated therein. (These included res judicata and limitations.) The dismissal was with prejudice and plaintiff has appealed. (Plaintiff is a party both individually and as executrix but we will refer to plaintiff in the singular only.)

Plaintiff claims defendant was a party to a conspiracy to fraudulently make use of legal proceedings to injure plaintiff and her testator by commencing groundless actions in connection with the settlement of the estate of John Moffett and partnership estates in which John Moffett and her husband Thomas Moffett were partners. Reports of previous litigation concerning these estates which has been finally determined include Moffett v. Moffett, 131 Kan. 546, 292 P. 942; Moffett v. Moffett, 131 Kan. 582, 292 P. 947, 77 A.L.R. 294; Moffett v. Moffett, 283 U.S. 826, 51 S.Ct. 351, 75 L.Ed. 1440; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; Clark v. Moffett, 290 U.S. 642, 54 S.Ct. 61, 78 L.Ed. 558; Moffett v. Robbins, D.C., 14 F.Supp. 602; Moffett v. Robbins, 10 Cir., 81 F.2d 431; Moffett v. Robbins, 298 U.S. 675, 56 S.Ct. 940, 80 L.Ed. 1397; Moffett Bros. Partnership Estate v. Moffett, 345 Mo. 741, 137 S.W.2d 507; Moffett v. Commerce Trust Co., 354 Mo. 1098, 193 S.W.2d 588; Moffett v. Commerce Trust Co., 329 U.S. 669, 67 S.Ct. 82, 91 L.Ed. 590; 329 U.S. 827, 67 S.Ct. 184, 91 L.Ed. 702; Moffett v. Commerce Trust Co., D.C., 75 F.Supp. 303; Moffett v. Commerce Trust Co., D.C., 87 F.Supp. 438; Moffett v. Commerce Trust Co., 8 Cir., 187 F.2d 242; Moffett v. Commerce Trust Co., 342 U.S. 818, 72 S.Ct. 32, 96 L.Ed. 618; 342 U.S. 879, 72 S.Ct. 163, 96 L.Ed. 661; Id., 343 U.S. 989, 72 S.Ct. 1070, 96 L.Ed. 1375. Defendant's reliance on res judicata and limitations is based on these cases.

Plaintiff's petition is in two counts, both asking judgment for the same damages. Count Two adopts every allegation of Count One and of Exhibit 1 made a part of the petition. Exhibit 1 contains the petition in the suit in the United States District Court in Kansas City, 75 F.Supp. 303, 87 F.Supp. 438, 187 F.2d 242, and other exhibits presented to the Federal Court. We will consider all facts set out in the petition and attached exhibits. Sec. 509.130; statutory references are to RSMo and V.A.M.S. The petition contains many charges and statements in the form of conclusions and also cites and quotes from some of the decisions hereinabove set out. The petition covers 86 pages in the typewritten transcript with 72 printed pages of exhibits. The following facts about the course of the litigation appear therefrom. John Moffett made his will February 21, 1921, one day before he was married. (His widow is now Helen Weede, having remarried.) The will devised all of his property to his relatives, except a bequest of $5,000 to Miss Helen Mustard, who became his wife; and appointed his brother Thomas Moffett executor, naming defendant alternate executor. For a copy of the will of John Moffett see Zombro v. Moffett, 329 Mo. 137, 44 S.W.2d 149, loc. cit. 150. It is alleged that defendant (by its trust officer B. C. Howard) prepared the will in consideration of being appointed alternate executor. John Moffett died August 23, 1927 and Thomas Moffett was given letters as executor by the Probate Court of Jackson County. It is alleged that defendant advised the widow that she could defeat the will by electing to reject it and take one-half of the estate. (The Supreme Court of Kansas upheld this view of the cases above cited.) In November 1928, Thomas Moffett was removed as executor on the ground of conflicting interests because of his claimed indebtedness to the partnership estates of Moffett Brothers and Moffett Brothers and Andrews, in which both John Moffett and Thomas Moffett had been partners, and also indebtedness of Thomas Moffett and the partnership estates to the John Moffett estate. Thereafter, defendant was appointed to administer the John Moffett estate and both partnership estates; and the litigation over the rights of the parties continued for many years in Kansas, Missouri and the Federal Courts. Thomas Moffett died December 22, 1930 and plaintiff was given letters as executrix of his estate. She alleges that she is the sole beneficiary under his will.

The theory of the first count of the petition is that defendant conspired with the widow of John Moffett and others (attorneys, accountants, etc.) to institute and maintain groundless actions in which it had no individual interest to injure plaintiff and her husband and to obtain his property; and that defendant was also guilty of abuse of process. It is because these actions were successfully terminated, in favor of the estates of which defendant was executor or administrator, that plaintiff claims to have been damaged. The petition and exhibits set out at considerable length the course of the litigation and incidents connected with it, including the judgment rendered in the District Court of Harper County, Kansas, affirmed 18 P.2d 555, in which the principal determinations of the rights of the parties was made and which is especially attacked and claimed to be the result of fraud. This Harper County case, commenced by Thomas Moffett (who died before the trial) as a partition suit, involved the parties' interests in land and an accounting between them and their partnerships. It resulted in judgments in favor of the John Moffett estate for $143,829.96 against the Moffett Brothers estate, for $27,399.25 against the Thomas Moffett estate, and for $101,288.06 against the Moffett Brothers Cattle, Land and Lumber Company. Fourteen suits against the Thomas Moffett estate, alleged to be fictitious and groundless, are listed including one still pending in the Circuit Court of Jackson County. These proceedings include claims filed in the Probate Court of Jackson County and in the Probate Courts of Chautauqua and Wyandotte Counties in Kansas. As to Count Two, plaintiff's brief says it 'contains allegations as to action in the federal courts based on the federal Civil Rights Acts, same being Sections 41, 42, 43, 47 and 48, Title 8, U.S.C.A. [now 42 U.S.C.A. Secs. 1981-1983, 1985, 1986]' and 'contains extracts from the opinions in the United States District Court for the Western District of Missouri, and of the United States Court of Appeals for the Eighth Circuit, establishing that said courts--while accepting the truth confessed by respondent's motion to dismiss alleged in the second amended complaint (Exhibit 1) in the federal court--yet decided that the action was against persons who were found by said federal courts not to be exercising state power, and that said federal courts were without jurisdiction to grant appellant any relief. * * * In substance, Count II alleged that respondent was estopped by its admissions of the truth of the allegations of the second amended complaint in said federal court proceedings, and that said federal court proceedings did not estop appellant from instituting this action.'

We must hold that the trial court was correct in holding this petition did not state a cause of action. In the first place, we held in the former case of Moffett v. Commerce Trust Co., supra, 193 S.W.2d loc. cit. 591, the petition failed to state a joint cause of action and that is what plaintiff attempts to do now. Plaintiff says the judgment in that case, under our old code of procedure for treble costs on finding a third petition insufficient (repealed Sec. 948, R.S. 1939), was not a decision on the merits which could be res judicata and was not a bar to any future proceedings involving the same facts, citing Gordon v. Burris, 125 Mo. 39, 28 S.W. 191; State ex rel. Damon v. McQuillin, 246 Mo. 674, 152 S.W. 341; Gibson v. Armour & Co., Mo.App., 219 S.W. 152. Be that as it may, and these cases seem to so hold, we reaffirm our previous ruling and hold that this petition fails to state a joint cause of action for the reasons stated in our former opinion.

However, we will now go further, as we did not do in our previous decision, and hold that no cause of action is stated in favor of plaintiff, either individually or as executrix, in either count. As to Count Two, we hold no cause of action is stated for the reasons given by the United States Court of Appeals in Moffett v. Commerce Trust Co., 8 Cir., 187 F.2d 242. Plaintiff's brief says, as to Count One: 'Said petition stated a cause of action in that: A. Said petition charged a conspiracy to institute and maintain groundless actions in violation of the common law and sections 556.120 and 556.130. B. Said petition charged respondent, individually, with unlawful maintenance of said actions, in which it had no individual interest. C. Said petition charged respondent with abuse of process.' Section 556.120 makes conspiracy to do certain things a crime (including 'falsely or maliciously to move or maintain any suit') and Section 556.130 requires an overt act except in certain instances. Plaintiff also relies on Section 537.010, providing for survival of actions for wrongs done to the property rights or interests, and Section 537.050, preserving right of action to persons injured by commission of crime. As to nature of tort action of conspiracy see Kansas City v. Rathford, 353...