264 Mo. 89 | Mo. | 1915
This case comes to this court on the ■dissent of one of the Judges of the Kansas City Court of Appeals to the decision of the majority of said court, and a request that it be certified here as being in conflict with two of our decisions. The facts and conclusions of law applicable to them are ■clearly and accurately stated in the following extracts from the decision of Judge Ellison, speaking for the Kansas City Court of Appeals:
“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 Each of these contains a box- which may be withdrawn and in which the- customer places his money, papers or other valuable articles.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
“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 on the corner of the desk ‘that seemed to be a little puffy.’ He looked into it and found it contained $18fi in bills. Neither the envelope nor the money had any name or mark of identification. He took his box back to the vault, and supposing the money belonged to-some of defendant’s customers, handed it over to one of its officers to find the owner.
“Uefendant 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 pretence 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.
“Now in whose possession was the money when discovered by plaintiff? It could scarcely have been more in defendant’s possesison, 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 excluded; 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 after-wards appeared, have had legal grounds 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 dis
“So, therefore, we repeat that the rights of each •of the parties to this controversy were full grown the moment plaintiff discovered the money. The subsequently developed fact of no owner being found up to the date of this action, does not affect the status of ■either party as to the right of possession at that time. And the question on the supposed case recurs: Would 'it have been the duty of the attendant to have asserted ■a right in defendant' to possession as against the urchin’s claim of finding it? The answer is plain. If the money was lost, in a legal sense, defendant had no sort of possession of it and owed no duty towards it and had no right to question the honesty of the finder. But if defendant did owe a duty to it, then it was in its ■custody and plaintiff could have no claim as a finder; for it is not within the bounds of reason or good understanding to say that a thing is lost which is in the possession of another and under that other’s protection.
“But plaintiff insists that this statement of the law is a mere dictum, made without careful consideration of the cases cited in support of it. Passing by any discussion with plaintiff as to whether the proposition is dictum, and passing by any question that, dictum or not, it is our duty to follow it, an examination of the authorities on the question leaves no doubt that what the court stated in Hoagland v. Amusement Co. has been recognized as the law wherever a like question has arisen. It seems to us that counsel treats too lightly the distinction made between conditions in which money or other valuables may be discovered by an al
“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 acei
“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 at bar. Thus in McAvoy v. Medina, 11 Allen, 548, the court said: ‘But this property is not, under the circumstances, to be treated as lost property in that sense in which a finder has a valid claim to hold the same until called for by the true owner. This property was voluntarily placed upon a table in the defendant’s shop by a customer of his who accidently left the same there and has never called for it. The plaintiff also came there as a customer, and first saw the same and took it up from the table. The plaintiff did not by this acquire the right to take the property from the shop-, but it was rather the duty of the defendant, when the fact became thus known to him, to use reasonable care for the safe-keeping of the same until the owner should call for it.’ And in Kincaid v. Eaton, 98 Mass. 139, the' court went the iength of holding that even where the owner left his pocket-book on a desk in a bank, and, supposing- he had lost it, advertised a reward to anyone who found it, he who discovered it on the desk was not entitled to the reward as it had not been lost and was not found. The court said that: ‘To discover an article voluntarily laid down by the owner within a banking house, and upon a desk provided for the use of such persons having business there, is not the finding of a lost article. The occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left. The plaintiff has not established a legal
“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 that in order to constitute legal losing the thing must have been actually lost by the owner, and not merely mislaid; that is, he must not voluntarily and purposely have laid it away in a certain place for a time, with the intention of retaking it, and then have forgotten where he had placed it; but it must have involuntarily and accidentally, as respects the owner, gotten out of his possession.’
“The case of Deaderick v. Oulds, 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 Lukton, 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 voluntarily 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
“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 be the subject of larceny and in that case Lawrence insisted the money he was accused of stealing was lost. The circumstances were that he was a barber and found a-pocketbook containing $480 in money, on a table in his shop. The court denied his defense, and among other things, said that: ‘To place a pocketbook upon • a table, and to omit or forget to take it away, is not to lose it in the sense in which the authorities speak of lost property. ’
“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 one 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.”
We' approve and adopt the foregoing opinion of the Kansas City Court of Appeals, only adding thereto a word as to the statutes of this State referring to finders of lost property. [R. S. 1909, sec. 8268 et seq.] These provisions of the statute relate to the specific duties of the finder of lost personal property who does not know the true owner and provide a statutory method for the acquisition of title. They are inapplicable to the facts in this case, because the property here was not lost. It was merely left in the construe
The judgment of the circuit court is reversed.