| N.D. | Dec 30, 1922
Lead Opinion
This is an appeal from a judgment for the plaintiff in an action for conversion. The. case was tried in the district court of Burleigh county, before a jury, and resulted in a verdict of $6,000, plus interest from October 1, 1917, at 6 per cent. Upon this verdict judgment was entered.
The plaintiff is a civil corporation, organized in 1906 under the laws of this state, § 1425a, Rev. Codes 1899, for the purpose, among others, of maintaining an armory for Company A, First Regiment, North
In March, 1917, Company A was called into Federal service as a part of the Second Battalion of the North Dakota National Guard, and assigned to guard duty at Camp Frazier, near the Missouri river railroad bridge at Bismarck. July 1st, 1917, this battalion was relieved of guard duty and mobilized at Fort Lincoln, near Bismarck, Company A being under the command of Captain J. IV. Murphy. Soon thereafter, the Second Regiment of North Dakota National Guards was organized, Company I and the Headquarters Company of this Regiment being recruited in Bismarck, and placed under the command of Captains A. B. Welch and II. T. Murphy, respectively. It seems that the First Regiment entrained for Camp Greene, North Carolina, on September 29, 1917, and the Second Regiment, October 1, 1917. Shortly prior to the departure of the First Regiment, according to his contention herein, the defendant had purchased some of the property belonging to the plaintiff, through negotiations with Captain John W. Murphy, and by an instrument, or letter, dated September 29, 1917, it is contended that authority was conferred upon the defendant to take full charge of the armory building on October 1st, on behalf of plaintiff corporation, until the captain or his successor should return to Bismarck. On or about August 5, 1918, Captain J. W. Murphy returned to Bismarck, where he died sometime later. According to the defendant’s contention he turned back to Captain Murphy, upon the latter’s return, the property which he had not purchased.
It appears, however, that prior to the departure of Company A, and at about the time the defendant obtained custody of the plaintiff’s building and contents, the armory contained the following equipment (the numbers of some of the articles being indefinite) : Steel lockers, steam boiler, a large number of pairs of roller skates, a large number of chairs, a roll top desk, a piano, punching bag and rack, horizontal bar, basket ball frames, ladies’ dresser, a rug, two rocking chairs, hot water
It is first argued that the court erred in not directing a verdict for the defendant, on the ground that there was no substantial evidence on which a jury could find that the defendant had converted the plaintiff’s property, in that there was not shown to have been any evidence of a tortious taking or any intent to convert the property; that the testimony, when construed most strongly against the defendant, shows no more than negligence in the care of the property, — negligence in the sense of nonfeasance, rather than misfeasance; that there was no demand for the property, and no unlawful detention. We are of the opinion that no error Avas committed in the denial of the defendant’s motion for a directed verdict. There is affirmative evidence in the record to the effect that the defendant, in order to regain possession of the building from one O’Connor, to whom he had leased it, paid him a bonus in cash, and authorized him to take from the building about seventy chairs and a piano. The defendant disputed this, but lie' testified that he made a deal with 'Captain J. W. Murphy, whereby he purchased the lockers for the Beulah Coal Mining Company, supposing there were a hundred of them, for $180, but that there were only, in fact, some forty-seven or forty-eight lockers; that the men who took the lockers for the mining company said that they wanted the water tank also, and he, the defendant, told them to go ahead and take it, but that he hadn’t seen Murphy about the tank prior to that time. If it be assumed, therefore, though we do not so decide, that Oaptain J. W. Murphy had authority to dispose of plaintiff’s personal property, obviously, this authority ivas not, under the evidence in this case, exercised further than to dispose of the lockers to the defendant. As the defendant himself has testified to the unauthorized taking of the water tank, and as other witnesses for the plaintiff have testified to the taking and disposal of other property under the defendant’s direction, the evidence is clearly sufficient, in our opinion, to support a finding of conversion. In as much as the same evidence goes to establish an original tortious taking, it is not essential, under well settled legal principles, to make or prove a demand for a return.
The testimony of the witness Langley as. to value related principally to the piano. He stated that it was worth a thousand dollars; his knowledge of the value, according to his testimony, was gained from negotiations that he had had in Minneapolis, for the purchase of a new piano. Upon the record we think it clear that this witness was not shown to have been qualified to testify as to the value of the piano. Neither was the condition of the piano shown. In fact, one of the witnesses for the plaintiff, namely O’Connor, who took the piano from the armory, testified that it was. worth $85, and that while it was supposed to be, or to have been, an electric player piano, the player part was gone. Whether it disappeared before or after the alleged conversion does not appear.
The respondent insists that the testimony of the witnesses Welch and Langley, as to value, comes properly within the rule that an owner may testify to the value of his property, but we do not consider the testimony offered here to come within this rule. These witnesses were not the owners; neither does it appear, with the exception noted as to the skates, that either of them had purchased, or had otherwise become
Eor tbe error thus affecting a substantial part of tbe recovery, tbe judgment must be reversed and tbe cause remanded for a new trial.
It is so ordered.
Concurrence in Part
(concurring in part and dissenting in part). I concur with tbe majority opinion in so far as it bolds that tbe evidence is sufficient to show a conversion of tbe property in question by tbe defendant. I dissent from tbe majority opinion in so far as it holds that there is no substantial evidence in tbe record to support tbe verdict.
Tbe property converted is located in tbe armory in Eismarck, North Dakota. It was only such property as was used for tbe convenience, use and entertainment of tbe members of tbe company. Tbe members and officers of tbe company were familiar with it and were perhaps in just as good a position to know its value as tbe adult members of the household would be familiar with and know tbe value of tbe furniture of tbe home. Because tbe company had a corporate existence, would not prevent tbe officers or members or directors, in the circumstances here, from knowing tbe value of the property in tbe armory. Tbe wit
Dissenting Opinion
(dissenting). I am of the opinion that the judgment should be affirmed. I concur in the majority opinion to the extent that it holds the evidence sufficient to support the jury’s findings of the conversion. I disagree with the majority opinion concerning the admissibility of competency of the testimony of the witnesses Captain Welch and Langley.
Many years ago, an armory building was established in Bismarck. Company “A” of the National Guard was quartered there. The personal property involved, located therein, was bought by, or furnished to, the company for its use. The company was the owner. Plaintiff, a civil corporation, was organized for purposes of holding this property. Its board of directors was composed of members of the company, one of them being the captain. With the exception of a few months the witness Welch was captain of the company from 1913 to April, 1911. During the time when preparations were being made for engaging in the world war he was assigned to Company “I.” Captain Welch was president of the plaintiff corporation. He was president of it at the time of the trial. As company commander it was his duty to see that the personal property was conserved. As far as the government property was concerned he was directly charged with it. This property involved was not government property. The witness Welch had charge of this property. He was familiar with it. He testified that he knew the reasonable value of this property. Some of it he had bought, such as the roller skates. His knowledge of value was based upon what he had paid for these articles. He further had inquired recently as to the value thereof. He had made inventory of this property. He saw the property in September, 1917, when the company was entraining for the Front. On cross-examination he testified that the values he placed upon the property were his estimate; that concerning some of the articles that he did not know what their real value was; that he was giving merely his estimate.
The witness Langley has been a member of the board of directors
At the conclusion of Welch’s testimony defendant moved to strike out certain portions thereof concerning value of certain property for the reason that witness testified that he did not know what its value was. A similar motion was made with reference to the witness Langley.
The testimony of other witnesses was introduced, both by plaintiff and defendant, concerning the condition of the property and its value.
Pursuant to all of this testimony, considering the highest values testified for the various items, the total amount aggregated over $7,100. The jury returned a verdict for $6,000.
It is apparent that the evidence of the witnesses Welch and Langley, which was received without objection, was competent for the purposes for which it was offered. Goldstein v. Northern P. R. Co. 37 N.D. 602" court="N.D." date_filed="1917-08-01" href="https://app.midpage.ai/document/goldstein-v-northern-pacific-railway-co-6738083?utm_source=webapp" opinion_id="6738083">37 N. D. 602, 609, L.R.A.1918A, 612, 164 N.W. 143" court="N.D." date_filed="1917-08-01" href="https://app.midpage.ai/document/goldstein-v-northern-pacific-railway-co-6738083?utm_source=webapp" opinion_id="6738083">164 N. W. 143. Generally an owner is permitted to testify concerning the valrre of property owned by him. 22 C. J. 581; 13 Enc. Ev. p. 560. The reason for such rule is that there exists a presumption of familiarity with that which is owned and a better means of knowing the quality and value than other persons. Fairmont Gas Engine & R. Motor Car Co. v. Crouch, 133 Minn. 167" court="Minn." date_filed="1916-05-26" href="https://app.midpage.ai/document/fairmont-gas-engine--railway-motor-car-co-v-crouch-7978078?utm_source=webapp" opinion_id="7978078">133 Minn. 167, 157 N. W. 1090. Wigmore, in his work on Evidence, § 716, vol. 1, states, concerning property values, viz.:
“Here the general test, that anyone familiar with the values in question may testify, is liberally applied, and with few attempts to lay down detailed minor tests. The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would*635 be trifling) may be left to tbe jury; and courts have usually made no objections to tbis policy.”
See Goldstein v, Northern P. R. Co. supra; Needham v. H. S. Halveron & Co. 22 N.D. 594" court="N.D." date_filed="1912-02-15" href="https://app.midpage.ai/document/needham-v-halverson-6736691?utm_source=webapp" opinion_id="6736691">22 N. D. 594, 603, 135 N. W. 203. So, under this rule, a part owner may testify the same as a full owner, 13 Enc. Ev. 561. So may a former owner testify. Paterson v. Chicago, 31. & St. P. R. Co. 95 Minn. 51, 103 N.W. 621" court="Minn." date_filed="1905-05-26" href="https://app.midpage.ai/document/paterson-v-chicago-milwaukee--st-paul-railway-co-7973307?utm_source=webapp" opinion_id="7973307">103 N. W. 621. Thus, the competency of an owner is not affected by the fact that his knowledge is recently acquired and is based in part on the result of inquiries made of experts and others. 12 C. J. 5S2. It certainly appears from this record that the witnesses Welch and Langley fall within the reason of the rule permitting an owner to testify concerning the value of his property. There is no necessity of applying any presumption that a mere stockholder or director of a corporation may testify like an owner. Upon this record the witnesses, whose testimony is questioned, knew the property, wTere familiar with it, and had a custody and control thereover. Under the peculiar circumstances it may well be said that they were directly interested in this property. In fact they stood precisely in the position of one who would be the owner of such property. The reason for the rule applying, the rule should apply. It faii’ly well appears upon the record in this case that the plaintiff as a civil corporation simply existed for the purpose of holding a status in law as the owner of this property. It-was not engaged in business. It was simply holding the title to the property for the benefit of the composite members of an organization that formed a military unit of our government. Hence, all of these facts should be considered in connection with the general principles of law that any witness, whether owner or not, sufficiently familiar with property to make his estimate serviceable may state his estimate of its value. 22 C. J. 573; Lines v. Alaska Commercial Co. 29 Wash. 133" court="Wash." date_filed="1902-07-15" href="https://app.midpage.ai/document/lines-v-alaska-commercial-co-4725328?utm_source=webapp" opinion_id="4725328">29 Wash. 133, 69 Pac. 642. Eor, ordinarily, value is simply a matter of opinion. In many cases, such as this case, the proof must rest on the opinion of witnesses. See 22 C. J. 574. In such cases the liberal rule of construction is applied concerning the competency of such witnesses. 22 C. J. 574; City Nat. Bank v. Jordan, 139 Iowa, 499" court="Iowa" date_filed="1908-09-29" href="https://app.midpage.ai/document/city-national-bank-of-columbus-v-jordan-7113090?utm_source=webapp" opinion_id="7113090">139 Iowa, 499, 504, 117 N. W. 760.
The judgment should be affirmed.
Rehearing
A rebearing has been bad in this case and the majority of the court is agreed to the views expressed in the opinion previously rendered herein. That opinion is therefore adopted as the opinion upon rehearing. The chief justice adheres to the views expressed in his dissenting opinion and Judge Burr concurs in that opinion.