162 Mo. App. 165 | Mo. Ct. App. | 1912
Lead Opinion
Defendant is a safe deposit company. It maintains individual safes or compartments •which it rents to customers for the safe-keeping of money and other valuable articles. Each of these contains a box which may be withdrawn and in which the customer places his money, papers or other valuable articles. It requires two keys to open one of these safes, one carried by the customer and the other by the attendant in charge. Its place of business is on the same floor and in practically the same room occupied by a banking institution known as the Fidelity Trust Company; it being separated therefrom by a steel fence. A customer enters from the street through the bank, thence through a steel gate operated by an attendant, thence into the vault through another gate opened by an attendant. Plere he and the attendant open his compartment and he takes out his box and goes to a small private room containing a desk and chair. On the desk are some envelopes, blotters and a pair of scissors. He is admitted into this by an attendant, and when he leaves, the door closes and locks automatically; whereupon the attendant unlocks it and makes the room ready for the next occupant.
Plaintiff had a compartment rented of defendant, and on the afternoon of April 13, 1906', he took his box therefrom in the usual way, was admitted into one of these private rooms by the attendant, where he examined some papers in his box, and as he was about to leave the room he noticed an envelope lying
Defendant keeps a record of the name of each customer and the day he takes his box from the. vault, and it has written to each customer who took out his box on the day plaintiff discovered the money, and it has made diligent search for the rightful owner, 'but up to the time of the trial (30th November, 1910), had not found him. After a time plaintiff demanded a return of the money, and defendant refusing to deliver it, this action followed, in which plaintiff had judgment.
Neither plaintiff nor defendant claims to be the owner of the money. Plaintiff makes no pretense that the money was intentionally abandoned by the owner, and if he should be successful in this action, he must institute certain proceedings prescribed by sections 8268-8273, E. S. 1909, concerning lost property, whereupon, if no owner appears by the end of a year, he would become the owner by force of the law. The question for decision, therefore, is not who owns the money, but which of the parties is entitled to the possession of it; or, better stated, which is the proper custodian. Plaintiff, to sustain himself, must show that he found money which was lost. Property in the possession of another cannot be found, in the sense of the law of lost property, for the reason that it is not lost. Even if ^discovered in possession of the thief who stole it, the discoverer has not found it, for the reason that being in the thief’s possession, it is not lost. If, therefore, the money in controversy was in the possession of defendant when discovered
A few words on the subject of the possession of one thing carrying along with it the possession of other things connected therewith, will help to determine the controversy. In South Staffordshire Water Co. v. Sharman, 2 L. R. Q. B. Div. 44 (1896), it is said that: “The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence.” In that case the owner employed the defendant and others to clean out a pool and defendant found two gold rings in the mud at the bottom. He gave them to the police authorities, who endeavored by advertisement and otherwise to find the owner. On failing to find a claimant, the authorities returned them to defendant, whereupon the owner of the land brought an action of detinue. The judgment in favor of the owner was given by the Lord Chief Justice of England, who, among other things, said that: “The general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.”
In Elwes v. Brigg Gas Co., L. R. 33 Ch. Div. 562, a prehistoric boat forty-five feet long and made of a single log, was found six feet underground, by lessees in excavating for a gas holder, and it was held that the possession of the boat, whether regarded as a part of the soil or as a chattel, was in the owner of the land, and that it made no difference that he did not know of its existence.
In Goddard v. Winchell, 86 Iowa, 71, an aerolite fell upon a man’s farm and buried itself three feet beneath the surface. Afterwards it was found by a neighbor, who dug it out and claimed it. It was held to be a part of the soil and in possession of the owner of the farm.
An interesting case in New York (Burdick v. Chesebrough, 88 N. Y. Supp. 13) was a controversy over buried earthen ware, and it was held that the owner of the land was entitled to it as against him who dug it up, and that when found and taken up it became the personal property of the owner of the soil as against the claim of the finder and every one else except the true owner.
And so it seems to have been thought necessary, as said to be shown in one of .the-parables, if a man wanted title to a treasure he had found hidden in a field, that he should “buyeth that field:” Matthew, xiii, 44.
There are two cases, cited by plaintiff, where gold coin (treasure trove) was found buried and it was held that the finder had a better title or right to the possession than the owner of the premises. [Danielson
Now in whose possession was the money when .discovered by plaintiff? It conld scarcely have been more in defendant’s possession, unless it had been in the pocket of one of its officers. It was not only in defendant’s place of business, but was in a separate apartment, from which the public was_£2cluded; and, more than that, it was on a desk in a little private compartment kept under the immediate and constant guard and supervision of one of defendant’s attendants. A roguish street urchin, if by possibility he had gained access to this place and discovered the envelope on the desk, would have had the same right to it that plaintiff had. Suppose the attendant had observed the boy as he found it; would he have been justified in letting him carry it off? Would it not have been his duty to assert defendant’s right of possession and to take it from the boy? Would not the real owner, had he afterwards appeared, have had legal ground of complaint against defendant, as his bailee, for gross neglect in allowing the money to be carried off in full view? It is no answer to this suggestion, nor does it show any distinction between the supposed case and the real one, to say that in the former the owner appeared and in the latter he has not. For, whatever legal right there was to posses^ sion of the money, came into existence the moment plaintiff discovered it. If it was in defendant’s possession then, it remained in its possession, and it should hold it for the owner, subject to such rights and duties as arise under the law of bailment or trusteeship. If plaintiff found the money, in the legal sense, then he was entitled to the possession, no matter whether the owner was afterwards ascertained or not. He was entitled to the possession as a step in his ultimate ownership, if no owner appeared after
Authority is abundant and uniform in support of defendant’s possession and right of custody. Beginning first with our own state, we have the case of Hoagland v. Amusement Co., 170 Mo. 335, an action for unlawful arrest and assault and battery. Defendant operated a summer place of amusement and refreshment in the open air, all parts of which were free and open to the public, except a theater which was fenced off from other parts. Plaintiff attended the theater and then took a seat at one of the many tables scattered about the premises, where he found
Therefore if a person goes into another’s public place to transact business with him and places his money on a table or desk and comes away forgetting he had done so, he has left it in the possession of the owner, or, as is expressed, he has left it within the protection of the house. This rule has been stated and conceded to be established law, in a number of cases where the situation of the property was such as to make it lost property. We will first refer to these. A case referred to with much frequency is that of Bridges v. Hawkesworth, 7 Eng. L. & Eq. 424. There the plaintiff, being in the defendant’s public
Thus in Hamaker v. Blanchard, 90 Pa. St. 377, a servant found money on the floor of one of the public parlors of a hotel, and it was held that she was entitled to it against every one but the true owner. The court, however, stating: “But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter or other place, by the owner who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article was deposited in its place, the finder has no right of possession against the owner of the building.” The same distinction is made in the instance of money having been left in an old safe and thence had slipped or been accidentally shoved in a crevice in the safe and thus become hidden. [Durfee v. Jones, 11 R. I. 588.] And where money was found in an envelope on the floor of a paper mill, which manufactured paper from old paper, the owner of the mill claiming that he had bought the money with the envelope. [Bowen v. Sullivan, 62 Ind. 281.]
But the rule stated by the Supreme Court in the Hoagland case does not depend for support alone on mere recognition, as in the foregoing cases. It has been applied uniformly in cases which are like the one
The case of Loucks v. Gallogly, 23 N. Y. Supp. 126, bears great likeness to the one before us. There the plaintiff discovered fifty .dollars in bills on a desk in the National Exchange Bank of Albany, and handed it to the bank teller to hold for the owner, and none made claim. Two years passed and plaintiff sued the teller. The court said that: “It has been held
The case of Deaderick v. Ooulds, 86 Tenn. 14, concerned the right to possession of a lost log. It seems that defendant found it stranded upon rocks in a stream, and that he turned it loose into the stream to float down to his boom below; but before it reached there the boom broke and the log floated onto and lodged upon an island belonging to plaintiff. Plaintiff claimed it as a lost log and as owner of the land upon which, it lodged. Defendant claimed it as the original finder and took it from the island; whereupon plaintiff brought replevin. The court, in the course of an opinion by Justice Lurton, now of the United States Supreme Court, said, in cases of alleged lost property that: “It is essential, however, in such cases that the property must be found; that is, it must, at the time when the finder came upon it, have been in such a situation as to clearly indicate that it was lost, and not Viduntarily placed by the owner where it was found, by carelessness or forgetfulness. If it was evidently laid where it was found, it then becomes the duty of the owner of the premises to keep the property for the owner, as in such cases he is treated as a quasi bailee, and he may maintain trover therefor against the finder; as if a pocket-book is found upon a desk or counter in a store or bank, the presumption is that the. owner placed it there and forgot it.”
A case to which we have already referred (Lawrence v. State, 1 Humph. 228) is a leading one on this subject. At the common law, lost property could not
The mind refuses consent to the proposition that one may go into another’s house, whether business or residence, and take away anything he discovers there which does not belong to the owner. If oné visits an acquaintance socially at his home, and comes away leaving some article on a table, he has left it in the possession of such acquaintance, and it seems absurd to say that another visitor would have a right to take the property from the house under the claim that he had found it.
The judgment should be reversed.
Dissenting Opinion
DISSENTING OPINION.
I dissent, and as I view the facts of this case I conclude the foregoing decision is in conflict with the true intent and purpose of the statutes relating to lost property and with the principles of law enunciated by the Supreme Court in Hoagland v. Amusement Company, 170 Mo. 335, and State v. McCann, 19 Mo. 249. Accordingly I certify the cause to the Supreme Court.