121 Ky. 498 | Ky. Ct. App. | 1905
Opinion by
Affirming.
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 certifi
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
It is, however, insisted that the rule announced can not 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 have been affected by such a conspiracy, if proven. In Dovey v. Lam, 117 Ky., 19, 77 S. W., 383, 25 Ky. Law Rep., 1157, which was an action for assault and battery against several defendants, it was held that, inasmuch as separate judgments may be rendered as to each defendant in an action to recover for an assault and battery, the wife of one of the de
In this case the appellee Mischell testified in behalf of Mary Froelich that she took the decedent, Mrs. Schonbachler, who was an old and diseased woman, to her home, nursed and cared for her through her long-sickness and until her death; that her entire stay with Mrs. Froelich lasted a year and eight months, during practically the whole of which she was feeble and unable to work, and much of it entirely helpless; that decedent was afflicted with consumption of the bowels,, a loathsome and incurable disease, which produced almost constant and involuntary action of the bowels,, that caused much befouling of the patient’s clothing,, bedding, and. room, attended with nauseous odors. Mischell also testified as to the payment of $27-7.45 to appellee Froelich by the decedent, that the latter then said she was paying Mrs. Froelich for taking care of her, and that the services of Mrs. Froelich in nursing and caring for decedent were worth many times the money she received. Upon the other hand Mrs. Froelich testified as to Mischell’s furnishing the decedent the statement, made a part of his answer, containing the account of the expenditures made for her out of money of hers in his hands, and that the $277.45 of her money remaining in Mischell’s hands was then paid to decedent by him. This sum, as shown by other wit
Appellees were corroborated by Paul Pry and wife as to what occurred when Mischell presented to the decedent the statements showing what use had been made by him of her money. They heard him tell her that there was $277.45 remaining in his hands, which he paid her, and this sum she immediately paid to appellee Proelich in satisfaction of what was due her for nursing and caring for decedent. They also saw Mischell pay her money before that time,
The only testimony introduced for the appellant was that furnished by himself and James Taylor. Appellant had two conversations with- appellee Miscliell and one with appellee Froelich before bringing suit. From each of them he learned that Mrs. Schonbachler left no money or property, and from Mischell he learned what she had done with her money. Taylor knew nothing about the case, except that a will was made by the decedent a short time before her death in which her entire estate was devised the appellee Froelich, and that it was not admitted to
We have been unable to find anything in the testimony of appellant that is contradictory of that of appellees or that conduces in any degree to entitle appellant to recover. This being true, there was no issue of fact to submit to the jury. Consequently the lower court did not err in giving the peremptory instruction.
Judgment affirmed.