*1 Fricke, Mo.App., peril 243 struction 2. imminent Rayburn The zone of v. 2d very rio 6 is dif was narrow because there was instruction 768. We think S.W.2d in issue Thus the effect of of obliviousness. from the instructions considered ferent the time cases, erroneous the whole submission was to limit prejudicially and not those herein, plaintiff’s duty to be of the commencement of submission in view of the whole though you speed least time when de find slacken at to the “even it commences cause driving Highway re 40. in some fendant was onto negligent that defendant was instructions”, any and There no instruction intimation spect these mentioned plaintiff’s prior requirement duty of a find commenced with the concludes any High defendant onto plaintiff’s negligence driving time ing that position be way 40 in a of imminent respects caused collision or was submitted “the and peril. plaintiff time felt matter was not at said If the two vehicles tween clear, clarifying only negligence of he should offered place.” The by Conrad, Hooper Mo.Sup., (submitted in the instructions instruction. mentioned substantially Although the same 496. instruction 260 S.W.2d instruction defensively specific, by converse have been more concept could and should submitted 2) was “defend it was not erroneous on instruction at least humanitarian driving stated, against it grounds urged yield failed to ant prejudicially errone Highway No. do not consider U. S. we his vehicle onto plain the entire submission in this street, path into the ous through plaintiff’s vehicle was case. vehicle when tiff’s closely as so intersection approaching said is affirmed. hazard.” See immediate constitute an Co., Public Service Louis v. St. Sommer for instruction an Mo.App., 262 All concur. yield right-of-way; see based on failure Co., Louis Public Service Devoto v. St. Nichols Mo.App., 251 S.W.2d Schleusner, Mo.App. 1106, 59 S.W.2d Thus this reference
708. to defendant’s
negligence mentioned in other instructions requirement
in connection with the “at said place”, plaintiff’s duty
time and to slacken speed as submitted instruction 6 would MOFFETT, Individu- as an Louise McGrew reasonably construed to commence after of Thomas Estate Executrix al and Highway defendant drove onto 40 “when Appellant, Deceased, S. plaintiff’s vehicle was so approaching closely as constitute immediate haz The issue on the neg ard.” humanitarian COMPANY, COMMERCE TRUST whether, Respondent. Corporation, ligence submission was after knew, “plaintiff saw and the exercise No. 44091. degree highest of the care could have Supreme Court of Missouri. known, that defendant seen and peril”, position imminent such Division No. 1. “by avoided collision slacken could have July 11, 1955. sufficiently speed his automobile ing the Rehearing for and to Motion Transfer to pass defendant’s automobile to to allow Stay Banc en Order him”, as submitted in instruc in front of Denied Oct. 1955. 7; or whether “defendant drove his
tion Highway out U. onto S. No. Rehearing automobile and Transfer Motion plaintiff’s path automobile so into the Banc Denied Court en Nov. plaintiff by high the exercise of the striking care could avoid degree of est vehicle”, submitted in defendant’s *3 Hiller,
Hugh Close, M. Philip J. City, respondent.
HYDE, Judge.
Action
damages
in the amount
Motion
two
million
one-half
dollars.
petition was
plaintiff’s
to dismiss
amended
cause of ac-
sustained for failure to state a
*4
legal
grounds
tion and for other
judicata and
(These
therein.
res
included
prej-
was
limitations.) The
with
dismissal
(Plaintiff
plaintiff
appealed.
udice
has
individually
party
both
as ex-
is
plaintiff
ecutrix but we
refer
will
only.)
singular
party
claims defendant
fraudulently
use
to a
make
legal proceedings
injure
ac
commencing groundless
her testator
tions in
settlement of
connection
estate of
Moffett
John
in which
her hus
estates
Moffett and
John
partners.
Thomas
Re
band
Moffett were
ports
litigation concerning
previous
these
finally
estates which has
determined
546,
Moffett,
include
131 Kan.
Moffett v.
942;
Moffett,
292 P.
Moffett v.
131 Kan.
582,
947,
292
294;
P.
77 A.L.R.
Moffett v.
Moffett,
826,
351,
283 U.S.
51
75 L.
S.Ct.
1440;
Moffett,
711,
Clark
Ed.
v.
136 Kan.
555;
Moffett,
18 P.2d
Clark v.
290 U.S.
642,
61,
558;
54
78
S.Ct.
Moffett
L.Ed.
v.
Robbins, D.C.,
602;
F.Supp.
14
Moffett
Robbins,
Cir.,
10
81 F.2d
Moffett v.
431]
Robbins,
675,
940,
298 U.S.
56
80 L.
S.Ct.
1397;
Ed.
Moffett
Partnership
Bros.
Estate
741,
507;
345
Mo.
137 S.W.2d
Moffett v.
Co.,
Commerce Trust
Mo.
354
1098,
588;
193 S.W.2d
Moffett
Com
Co.,
669,
merce Trust
329 U.S.
67 S.Ct.
82,
91
L.Ed.
329 U.S.
67 S.Ct.
91 L.Ed.
Moffett v. Commerce
Co., D.C.,
Trust
F.Supp. 303;
75
Moffett
Co., D.C.,
v. Commerce Trust
F.Supp.
87
438; Moffett v.
Co.,
Commerce
8
Trust
Cir.,
187 F.2d
Moffett v. Commerce
Co.,
Trust
342
U.S.
72 S.Ct.
96
L.Ed.
342
U.S.
72 S.Ct.
96
661; Id.,
O’Donnell,
L.Ed.
343
City,
U.S.
Martin
S.Ct.
J.
L.Ed.
appellant.
Defendant’s reliance on res
judicata
on these to the
Thereafter,
and limitations is based
de
estate.
John
fendant
appointed
cases.
to administer the
Moffett estate and both partnership
counts,
petition
two
Plaintiff’s
is in
estates;
and the
rights
over
asking
both
same dam
judgment for the
many years
continued for
adopts every
ages.
allegation
Count Two
Kansas,
Missouri
the Federal Courts.
part
1 made a
Count One and Exhibit
Thomas Moffett died December
petition.
peti
Exhibit
contains
given
letters as executrix
tion in
suit
District
in the United States
of his
alleges
estate. She
she
F.Supp. 303, 87
City,
Court Kansas
beneficiary
sole
under his will.
F.Supp.
F.2d
and other ex
presented
theory
hibits
the Federal Court. We
peti-
of the first count of the
will consider all facts set
tion
out
defendant conspired with the
509.130;
and attached
statu
(attor-
exhibits. Sec.
widow
Moffett and others
tory
neys, accountants,
references are to RSMo and V.A.M.S.
to institute and
etc.)
many charges and
groundless
contains
maintain
which had
actions in
*5
and
statements in the form of conclusions
no individual
injure
interest to
and
quotes
also cites and
from some of the de her
property;
husband and to obtain his
and
petition
The
guilty
cisions hereinabove set out.
defendant was also
of
of
abuse
pages
typewritten
¡process.
tran
covers
in the
It is because these actions were
script
printed
terminated,
of exhibits.
pages
in favor of the es-
¡successfully
following
The
facts about the course of the
which
of
defendant was executor or
tates
appear
¡administrator,
litigation
Moffett
therefrom.
claims to
John
day
February
damaged.
petition
made his will
one
been
and exhibits
!
(His
is now
before he was married.
widow
set out at considerable length the course of
Weede, having remarried.)
Helen
and incidents connected with
it,
property
will
all
his
to his rela
including
devised
of
rendered in the
tives, except
$5,000
bequest
Kansas,
a
to Miss
Harper County,
Court
District
Mustard,
wife;
Helen
who
his
principal
became
affirmed 18
P.2d
which the
appointed his
Moffett
rights
brother Thomas
exec determinations of the
of the
utor, naming
especially
defendant alternate executor. was made and
which
attacked
n andclaimed to be the result of fraud. This
copy of the
Moffett see
For a
will
John
case,
Harper County
329 Mo.
Zombro v.
commenced Thom-
alleged
(who
It is
that defend
trial)
cit. 150.
as Moffett
died before
loc.
as
suit,
pre partition
parties’
(by
Howard)
ant
its trust officerB. C.
involved the
interests
pared
being ap
accounting
will in consideration
in land and an
between them and
pointed
partnerships.
alternate
Moffett
their
It
in judgments
executor.
resulted
John
August
1927 and
Moffett
of the
died
Thomas
favor
Moffett estate for
$143,829.96 against
letters
executor
the Probate
given
Moffett Brothers
County.
estate,
$27,399.25
alleged
against
It
Court of
the Thomas
that'(
Jackson
|
estate,
$101,288.06
advised
she
and for
against
the widow that
Moffett
could;
Cattle,
by electing
reject
will
it and'.!the
Brothers
defeat the
Moffett
Land and Lum-
n
Supreme
Company.
(The
against
of the estate.
ber
Fourteen suits
take one-half
!,
upheld
estate,
view
alleged
this
of the Thomas Moffett
to be
Court of
ficti-
¡
groundless,
In
cited.)
including
November
tious
are listed
cases above
pending
Moffett
removed as executor one still
Circuit
Thomas
Court
County. These
conflicting
proceedings
interests be
ground
on the
in-
Jackson
his claimed
clude claims filed in the
indebtedness to the
Probate
cause of
Court
County
Brothers and
and in the
partnership estates of Moffett
Probate Courts
Jackson
Andrews,
Chautauqua Wyandotte
Brothers
Moffett
Counties
Two, plaintiff’s
Moffett and Thomas Moffett had Kansas. As to Count
both
brief
says
allegations
and also
it “contains
partners,
indebtedness of
action in
and the
courts based on the
estates
federal
Federal
Thomas
Civ-
41, 42,
Acts,
executrix,
in either count. As
Count
being
il Rights
same
Sections
Two,
we
is stated
hold no cause of action
Title
U.S.C.A.
47 and
[now
1981-1983, 1985,
and for the
States
given
reasons
United
U.S.C.A.
1986]”
§§
Appeals in
opinions in the Court of
Moffett v. Commerce
“contains
from
extracts
Co., Cir.,
Plaintiff’s
West- Trust
held void. cites and relies on Plaintiff also very Partnership case is Es
The situation this case of Moffett Bros. Moffett, supra, opportunity lack tate to es There was no 137S.W.2d different. conflicting case. shows defend this tablish her claims as to interests. attorney judgments a trial in the In resulted from that case we held could County, Harper District Kansas. allowed a fee for services in the Kansas through accounting This is identified the exhibits case both the Mof- part cited. There the Kansas case hereinabove fett and the Moffett Brothers estate estate; thorough accounting approve complete nership but we did the al involved with books a fee between the estates lowance of for other services attorney The contention the court. to the estate. sit records before plaintiff’s allegations was inter was made therein that defendant uation as it concerns capacities conflicting were in con vening in two interests contentions appeal instituting flict and the court on first said: and maintain groundless as ing “But there such conflict suits is well stated Mof we think is no Robbins, F.2d, supra, difficult for the trial court to fett loc. cit. would make it *8 respective adjudicate ruling the in contentions made ascertain and on similar Moffett, parties.” plaintiff enjoin Moffett v. in a suit to the enforcement rights of the P., appears judgment, holding supra, loc. cit. It that it was 292 950. the Kansas ancillary showing necessary was ad to state facts extrinsic that a sister of the re in Kansas for estate of rather than intrinsic fraud to obtain the ministrator The sought. Moffett the Moffett Brothers lief Court said: “In order Thomas estate, rule, appeared repre appear by must partnership come the it within the allegations party Thomas Moffett of fact that as sentative of the estate in clear the had a valid defense to the cause of serting the Kansas in which account it ing was See Moffett Bros. action on which the was ren had. Partner S.W.2d, supra, dered; prevented he ship 137 that was extrinsic Estate v. accident, mistake, Furthermore, fraud, concealment, statute, cit. our or loc. 461.650, chicanery partner presenting gives surviving right other such de the fense, he negligent the and that had not estate as did administer ** * law, availing 2 in himself of it. Limbaugh the common Mani therefore, although necessarily festly, allegations the Thom he would that claims part wrongfully was against it as owner of its as S. Moffett removed assets and Moffett; issued, process used, the is it is is the once of the estate executor Consequently thing importance. had no valid that the estate process an action it is that the for abuse of unneces- partnership; the claim sary prove pro- with for the that the fictitiously in Missouri filed claim was favor, ceeding has terminated in his or that law of that under the knowledge that probable with it obtained without cause or there; that maintained could not be it Company proceeding begun in the course of a Trust without knowledge Commerce such * ** probable and ac essential ele- partition cause. The in the suit for intervened process, ments of established abuse as the tort has in an to have it counting effort first, failing developed, there; have been stated to be: doing so and thereto, second, purpose, the ulterior a wilful act available advance defenses fiduciary duty process proper to the use of Company reg- violated its Trust proceeding. like ular partnership and that the defendant conduct of the Some defi- partner obligation to the nite act or threat not violated his authorized wise process, objective Trust Com or aimed at an ship by co-operating legiti- with the action; process, required; in the use of Helen Moffett in the mate is pany and upon liability and there and records which the claim is no where the defendant books untrue, nothing carry were unreliable and has done more than predicated out the conclusion, process those its knowledge with of that fact authorized even and that * * * though with the claim introduced them bad advocating intentions. evidence, may all present intrinsic fraud because ulterior motive be inferred from the process, court. wrongful facts were before the state use made of the those but the involved, thoroughly may were use itself not be inferred Those matters from the mo- Likewise, finally adjudicated there; and tive.” litigated, Restatement of Torts present comment, bill that oc charge Section is: “The consequence does gravamen of the misconduct for which the curred liability imposed into extrinsic or collateral stated in this Section is not convert them Cooper procurement Hockenberry wrongful legal proc- See also not the fraud.” Bank, wrongful County 338 Mo. 88 S.W.2d ess or the initiation of criminal or State present proc- proceedings; cases cited. Plaintiff’s civil it is the misuse of ess, properly obtained, and insufficient in this no matter how petition is defective any purpose than that respect. which it was same Therefore, accomplish. designed to process, plaintiff As to abuse of process properly is- immaterial that the Phillips Kilgore, 152 P. & Sons v. cites Dr. sued, course of that it was obtained McCoy Fla. So.2d White v. brought prob- proceedings were Co., Mo.App. Land S.W.2d proper purpose or and for a even able cause Scarritt, 1004, 111 341 Mo. White proceedings in favor of terminated Camp Sovereign Woodmen person instituting initiating them. O’Neill, 266 U.S. S.Ct. World process, subsequent misuse of that abuse of L.Ed. 293. It is true obtained, properly constitutes the though prosecu process is different from malicious liability which the is im- misconduct for *9 pend fact that an action is still and the tion in this posed under the rule stated Section.” parties in the the Circuit Court ing between Scarritt, supra, 111 action County is not a bar to an White v. of Jackson 18, example proper good is a of process. See Restate S.W.2d of A.L.I. for abuse Torts, purpose. Torts, process being used for an ulterior on Prosser ment of Sec. 178, brought taxpayers’ 176, 3, had a p. There defendants 892, Sec. Sec. Am.Jur. validity 180, the of an election 6, suit to determine p. Annotation 80 A.L.R. buy land for a (to incur indebtedness to Thompson Exchange Farmers’ levy seeking enjoin to the of Bank, courthouse) 803. As 333 Mo. 62 S.W.2d purpose taxes for the authorized. by “The for which purpose Prosser: day- process. plaintiff’s and 90 of Neither was had been selected testator courthouse site property compelled owners. or his estate to do options the some collateral taken from thing apart and the outside judgments had moved out of Plaintiff’s tenants hap- expire. legally pro- If that that could options to obtained in these were about Therefore, and ceedings. our a was to be selected conclusion is that pened, new site petition sale advantageous the her does not of abuse plaintiff would lose case property. process. of of our mortgaged ruling Because that the and be left with vacant continuing petition action, does not state a the threat cause of Defendants used process land- compel plaintiff other either abuse of or suit the to proportion maintenance, unnecessary unlawful pay to them a fixed it is owners to to pass price get grounds judicata to suit dismissed on the sale res and lim- of their the course, expired. options Of itations. before taxpayers to right had the defendants wrongfully makes it acted other con but some bring such suit tentions, merit, all purpose extorting which are without but for the using the suit owners, briefly will which we comment on property three of them. money from the complains legally given have that no and could notice was they did not owe not pay. hearing with of the time for on dis compelled The trouble the motion to to been plaintiff says which based miss herein is that it is violated constitu plaintiff’s process protection due equal in com- tional wrongful motives allegations of on on intrin- clauses made the dismissal all order of mencing of the that, happened plain What was carrying it a state void. after on but shows fraud sic tiff’s amended had filed and which it was defendant’s been of facts matters in issue deter- defendant’s motion to had been filed duty have the dismiss to it, plaintiff, against that these issues of on October was It also shows mined. interlineation; leave amend given the estates were determined to to indebtedness plaintiff’s previously then defendant refiled its filed testator in actions which against 12, 1952, purpose. motion to proper A case in dismiss. On December for that were plaintiff filed process motion to was shown is dismiss defendant’s which no abuse Riedel, motion and on filed 96 Wis. 71 N.W. Docter v. June Am.St.Rep. 40, a motion for judgment. All motions were L.R.A. where, bad, orally argued by attorneys was for both although the motive August previously both process having within on rights was of the use written lengthy suggestions. The court said therein that submitted Cer defendant. process tainly opportunity there lack of was: “whether has been was no to test end, accomplish be heard and failure to notice give some unlawful or to used compel hearing to do time for refiled mo the defendant some collateral defendant’s plaintiff’s petition not legally which could be com- tion to dismiss was waiv thing he exactly joining pelled presenting, arguing to do.” That what ed was Scarritt, supra, namely, submitting all motions to Plain done in White v. the court. compelled pay were further claims that entitled the landowners tiff she Company money theory could on the Land the admissions compelled legally pay and for made motion filing its peti anything rights matter collateral to involved in dismiss Federal Court civil However, pending are action. in this case tion conclusive it in this case. motive, words, plaintiff sought end In claims that admis whatever unlawful, beyond pur- by filing in one authorized sions case a motion to dis process initiated, miss, purpose because it for the pose obtaining a deter rep- indebtedness the estates of whether a establish mination cause of action *10 stated, and judgments obtain are be considered admitting to all resented alleged there was fraud facts in the petition, If intrinsic in the dismissed therefor. purpose obtaining judgments deciding party the that not the of abuse for that a is merits, in an- have been overlooked. Plaintiff miscon- on the judgment entitled to opinion is strues the all actions stating It that case. separate and different parties between were never ever commenced the say this is that sufficient to successfully in the es- Leone terminated favor of in state. law this See has been the We, represented by of tates defendant. Bilyeu, Mo.App., 231 S.W.2d course, finally Pleading, referred the deter- ; C.J.S., cases 239 71 Sec. Am.Jur. parties mined we had says the will between the which also page 533. Plaintiff § opinion, supra. in the making a bach- cited After he was made when of John infra, referred, and that statement we the elor, marriage his revoked was.not born, citing by plaintiff fourteen listed being other suits death without children noted that in pending one of them was still Judd, 60 Kan. P. Shorten County. Vanek, the Circuit Court of It Kan. 180 P. Vanek Jackson wid- is shown that of these cases are Pro- says Moffet’s four Therefore, plaintiff John Kansas, of Thomas bate Court claims one which misappropriated interest of ow the land; alleged de- was to be the claim still and that identical in the Kansas Moffet this, litigated being it Court of responsible because the Circuit fendant is reject County. the will. her she could elect to advised Jackson Plowever, Supreme of de- Kansas says para- alleged also it is question the interests of cided the of graphs 67 to of that Count One cited and in the cases hereinabove claims made all of the listed as actions question. If that is conclusive on that now pending they were were settled before ever incorrect, the facts that decision instituted; that defendant knew this that it was the result of ex- do not show settlement; and that the actions were not Furthermore, is fraud. trinsic good brought faith but for the ulterior case wrong meaning Vanek about purpose obtaining judgments non- (which estate) real because did involve part existing is true debts. It that this why the said therein: “the reason the court petition alleged that the members of not at marriage mere of the testator did partnerships years the various for several law the will was because common revoke 1, 1927, prior January engaged nego- pro- dower her sufficient gave the widow’s disputes them as tiations settle between any will tection effect of their and that to the correctness accounts made, and that the her husband whenever agreed upon a as of that settlement. date impaired is not force of this consideration However, payments is stated were right dower abolishment of where B. be made L. Andrews and C. J. equal substantially is value substituted Lewis to Moffett and Thomas Mof- John for it.” See Am.Jur. fett, and it is also stated that before these 22-108, 22- Secs. Am.Jur. completed payments were John 117, 22-127, R.S.Kan.1923. Thus the Vanek Furthermore, present as stated in the died. that, case hold does not law of motion, partnership “Moffett Brothers es- Kansas, a widow has no interest real included the settlement is not tate estate of her deceased husband under these compromise in paragraphs described to67 rights depend circumstances or her says 72 of Count One.” motion this any theory of revocation. was “because the brothers Tom judgment affirmed. Moffett were the members said partnership never had contro- All concur. business versies over their relations.” Nev- ertheless, shows that On for Rehearing, Motions to Transfer Harper County, case, Thomas Mof- Stay Court en Banc and for Order. fett and two of estates in reargues he was interested original most of were found to be again contentions made in Moffett. her brief and indebted It vigor- claims that allegations ously argued material was void, fact *11 not However, do pe- tates we in transfer banc. but we hold the facts stated case. any questions find in the real Federal for tition do it to be void not show Plaintiff on the contention opinion and in the bases this claim in our reasons stated civil that defendant’s to dismiss the attacked. motion it was cited which cases rights District States suit the United thereon, Court, ad pending, and that court’s action still to the actions As facts consti good adjudged faith mitted and “to plaintiff’s of lack of argument tute a the basis of said of dismissal get judgments indicates attempting and its affirmance cannot be controverted of malicious in the nature situation more Company— this case Commerce Trust process. Mali prosecution than abuse of is, course, estopped, as it said admissions be prosecution, of cannot cious adjudications.” says “the actions because these have maintained judg Federal Court based its decision and plaintiff’s This determined in favor. facts, that, upon ground ment under the really plaintiff wrongful contention is dismiss, admitted motion proceedings, which we initiation of civil relief, grant no but opinion Federal Court could pointed in the is not abuse of out part Torts, that the State court could.” The first process as Restatement correct, of that statement is but we comment under Section from which is court saying mistaken Federal quoted. civil The institution of vexatious did or ever to decide what the governed undertook groundless known to be is suits State court could do or to decide “that substantially the same rules as mali alleged facts stated a cause action prosecution proceedings. of criminal cious law”, In the Torts, 885, claims. on see also Prosser Sec. Ap opinion Strobel, United States Court of Mo.Sup., 225 S.W. Weber peals, F.2d said: loc. cit. it is cited; cases and see distinc 927-928 and question ap presented “The on this made tion between malicious use and mali peal sufficiency complaint.”. is the process, cious abuse of C.J. F.Supp. See loc. Thus Process, also 87 443. p. C.J.S., cit. §§ 120c, apparent question it is Federal is that no pp. case presented. Zaporanik (Sask.), Dom.L.R. Goler process an action abuse of was not request Plaintiff’s to file was, and. instead, proceeding quash but depositions in now have considered the case issued wrongfully writ to collect mort pending in the Circuit Court of paid. gage which had been It is not in Jackson County must be denied. no au There is point on the decisive issue herein. The al thority considering them the issue legations plaintiff’s relied on motions plaintiff’s peti herein of whether involved are sufficient to state a cause of action upon can tion states a claim which relief prosecution and we of malicious ex Likewise, granted. because
plained opinion why do not involved, issue there is no reason for proc show cause action for abuse of stay this order to decision. ess, plaintiff’s theory which is of the case. are All motions overruled. says event, a Fed question presented All concur. eral which necessi