Schonbachler's Adm'r v. Mischell

• Decision Date: 21 November 1905
• Parties: SCHONBACHLER'S ADM'R v. MISCHELL et al.
• Court: Kentucky Court of Appeals

89 S.W. 525

121 Ky. 498

SCHONBACHLER'S ADM'R v. MISCHELL et al.

Court of Appeals of Kentucky.

November 21, 1905

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by Mary B. Schonbachler's administrator against George Mischell and others. From a judgment for defendants plaintiff appeals. Affirmed.

R. G Hill, for appellant.

Winfred Carico, for appellees.

SETTLE J.

Mary B Schonbachler died in Daviess county intestate. By an order of the Daviess county court the appellant, J. A. Turner, was appointed and duly qualified as administrator of her estate. Thereafter he instituted this action in the circuit court to recover of the appellees, George Mischell and Mary Froelich, rent and other moneys alleged to have been left in their possession by the decedent at the time of her death. The petition as amended charged appellees with having conspired together to defraud and obtain the money of the decedent; that they did by such means get possession of it and refused to comply with appellant's demand that it be paid to him as administrator. It was further alleged that the appellant had no means of knowing and did not know how much of the decedent's money appellees had wrongfully appropriated, but that they had collected on a certificate of deposit from an Owensboro bank $400, in rents $100, and other sums, the aggregate amount of which was not less than $1,000. The prayer of the petition asked a disclosure and accounting at the hands of appellees and a judgment against them for the amount found to be in their possession and owing by them to the estate of the decedent. The answer of appellee Froelich simply traversed the averments of the petition, and that of appellee Mischell contained a similar traverse and in addition the admission that he had collected for the decedent and at her request $367 upon a certificate of deposit and $60 rent on a small parcel of land in which she owned a life estate; that these sums, amounting in the aggregate to $427, were all the money or property of the decedent that he ever had in his possession; that at her request he paid out of this sum in settlement of various accounts she was owing $149.55, and the remainder, $277.45, he paid the decedent, who at the same time paid it to appellee Mary Froelich for nursing, care, and attention the latter gave and furnished her in her ill health. There was filed with appellee Mischell's answer an itemized statement showing the date and amount of each payment of money made by him for the decedent and on what account it was paid. Appellant filed a reply controverting the affirmative allegations of the answer of Mischell, which completed the issues, after which there was a trial of the case by a jury and a verdict for appellees in obedience to a peremptory instruction from the court given after all the testimony was heard.

It is contended by appellant that he should have been granted a new trial in the lower court, and that he is now entitled to a reversal, because of the admission of alleged incompetent evidence on the trial and the giving of the peremptory instruction. It is argued for appellant that the appellees were not competent witnesses and that they should not have been allowed to testify as to conversations or transactions occurring between them, or either of them, and the decedent. It is true section 606, subsec. 2, Civ. Code Prac., renders them incompetent as witnesses in their own behalf, but it does not make them incompetent as witnesses for each other. Nor does the fact that they were joined as defendants in the action render either of them incompetent to testify for the other, as the jury may, in a case like this, find in favor of one of the defendants and against the other. In other words, though a recovery is sought against both defendants, if only one were shown by the evidence to be illegally in the possession of the decedent's money, without the assistance or procurement of the other, the verdict of the jury would go against the defendant wrongfully holding the money and in favor of the other defendant.

It is however, insisted that the rule announced cannot properly apply to this case, for the petition as amended charges that the appellees entered into a conspiracy to defraud the decedent and did by that means obtain her money. As the testimony wholly failed to show either a conspiracy or intent to defraud upon the part of appellees, it is unnecessary for us to decide to what extent their right to testify for each other would be affected by such a conspiracy, if proven. In Dovey v. Lam, 77 S.W. 383, 25 Ky. Law Rep. 1157, which was an action for assault and battery against several defendants, it was held that,...