61 W. Va. 87 | W. Va. | 1906
A writ of error to the circuit court of Mineral county has brought here, for review, a judgment in favor of Edward Kuykendall, an infant, suing by his next friend, against Harry C. Fisher, as administrator of the estate of Ellen Hughes, deceased, rendered by that court on an appeal from a judgment of a justice of the peace, in whose court the action originated.
As the rulings complained of relate to the rejection of ■evidence offered and instructions given and refused, a statement of the principal facts and the nature of the case, with reference, to some of the evidence, is necessary.
Fisher, as administrator of Ellen Hughes, sold to one Pierce Helmick, among other household articles, a heating stove. Sometime afterwards the plaintiff, Edward Kuyken-dall, a boy about thirteen years old, while playing about the premises of Helmick, discovered in the stove, a small tobacco sack containing a considerable amount of money in gold, and wrapped in a cloth. Not knowing its value he gave some of it away and probably lost a portion of it. He .gave to Chas. Beemas, another boy, ten dollars, who handed it to Mrs. Helmick and to a boy named Jackson Mayhew two dollars and a half, and on returning home his mother took from him what he had left, amounting to one hundred and forty-five dollars. This she took to Fisher, the administrator, and delivered it to him. Thereupon Fisher de
After the evidence had been heard by- the jury, the court gave, at the instance of the plaintiff, the following instructions:
“1. The court instructs the jury that the finder of lost property is the owner of it as against all the world except the loser or the real owner; and it is incumbent upon those claiming to liave lost the property to prove by a preponderance of the testimony that they are the lossers or real owners-of it, and if they fail to do this, they must find for the plaintiff.
“2. The Court instructs the jury that if they believe-from the evidence said-gold pieces were-lost property, and that plaintiff found them it does not matter where he found them; they belong to him against all the world except the loser or real owner. And it is incumbent upon those claiming to have lost the property to prove by preponderance of the testimony that they are the lossers- or real owners of it; and'if they fail to do this, you shall find for the plaintiff.
The defendant requested the court to give the following' instructions:
“The Court instructs the jury that they find for the defendant.
“No. 1. The Court instructs the jury that the plaintiff must prove by a preponderance of the evidence all matters necessary to give him a verdict in this cause.
“No, 2. The Court instructs the jury that even if you*91 believe that the plaintiff is entitled to recover in this cause,, yet you cannot give him a verdict but must find for the defendant, unless you believe from a preponderance of the evidence that defendant was requested before the institution of this suit to return the property in question.
“ No. 3. The Court instructs the jury that if they believe from the evidence that the defendant received the money from- the plaintiff or his mother, the witness, Martha Kuy-kendall, with the statement by said plaintiff or Martha Kuy-kendall that it belonged to the estate of Ellen Hughes, dec’d., or with the instruction to find the owner and to deliver the same; and, if, in so acting, in good faith the said defendant believed the property to be part of the estate of Ellen Hughes you shall find for the defendant.
“No. 4. The Court instructs the jury that lost goods are-such as when the possession has been casually parted with and that goods are not lost goods when the owner lays it away, even if he forgets where he puts it.
“ No. 5. The Court instructs the jury that if you believe from the evidence that witness Pierce Helmick bought a stove from the estate of Ellen Hughes, deceased, and at the time of said purchase it contained the gold in question in this suit then you must find for the defendant.
“No. 6. The Court instructs the jury that the l'oser of goods or one that lays away his property though he forgets where, is not divested of his property therein, and that the finder acquires no title as against the owner.
“ No. 7. The Court instructs the jury that if you believe the gold in issue in this cause was lost property, and i'f you further believe that it was found in a stove bought by Pierce Helmick from the estate of Ellen Hughes, deceased, you shall find for the defendant.
“No. 8. The Court instructs the jury that if you believe the gold in issue in this cause was not lost property but laid away, even if forgotten where, and that it was found in a stove bought by Pierce Helmick from the estate of Ellen Hughes, deceased, you shall find for the defendant.
“No. 9. The Court instructs the jury that if the infant got the property out of a stove belonging to one Pierce; Hel-*92 mick without consent of said Helmick then you must find for the defendant.”
Subject to exceptions by the defendant, the Court refused all these instructions and gave in lieu thereof the following:
*'The Court instructs the jury that they cannot find for the plaintiff unless it has been proved by a preponderance of the evidence in this case, that the property was lost property at the time the plaintiff claimed to have found it and that he did find it.”
The rejected evidence of James Hughes is in substance that his sister, after he had guessed the amount of money in the package at five hundred dollars, in response to her request, replied that it contained about $250.00. That of Mrs. Steortz was to the same effect, and, also, that Ellen Hughes had told her she had -hidden her money in a stove, preferring to have it burned rather than stolen, and believing a thief or robber would probably not expect to find it in a stove. Declarations of deceased persons, accompanying the act of possession are usually admitted by the courts to show that possession was held under a claim of title. The declarations are considered part of the res gestae. Wigmore Ev., section 1778; 16 Cyc. 1172 et seq. But the declarations here offered extended to the value of the property and disposition of it made by the declarant, matters lying far beyond the scope of the rule, and the court properly rejected them. Abney v. Kingsland, 10 Ala. 355, 44 Am. Dec. 491.
All the instructions given by the court, it will be observed, are predicated upon the hypothesis of the loss of the money. It is further to be noticed that some of the instructions refused embodied the theory that, if the money was found in the stove which had .belonged to the estate of Ellen Hughes, it was not to be deemed lost money, but, on the contrary, concealed property, belonging to the estate •of the defendant’s decedent. These instructions are somewhat informal, declaring abstract principles of law, rather than asking for the application of the principles to the concrete case, as the defendant viewed it upon the evidence adduced, but they nevertheless would have directed the attention of the jury to his theory of the case. In view of this, it is important to ascertain what the law deems lost property.
What has been said indicates that the place in which, money or property, claimed as lost, was found is a potent factor in the determination of the question whether it was lost, and so the authorities expressly hold. This fact is immaterial, ordinarily, as between the finder and all persons other than the owner. But, in determining whether the property was lost, or only misplaced or concealed, the important question in this case, it is a most powerful factor. In Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 528, money had been found in an iron safe which the plaintiff had pur
We think the money here, though designedly left in the •safe, was probably not designedly put in the crevice or interspace where it was found, but that, being left in the safe, it probably slipped or was accidentally shoved into the place where it was found without the knowledge of the owner, and so was lost, in the strictest sense of the word. The money was not simply deposited and forgotten, but deposited and lost by reason of a defect or insecurity in the place of deposit.” Thus the fact that it did not appear to have been deposited in the place in which it was found was decisive of its character as lost money. In Bowen v. Sullivan, 62 Ind. 281, the plaintiff, while engaged as an employe in defendant’s paper mill, in sorting a bale of old papers which the employer had bought for manufacture, found a number of bank notes, in a clean unmarked envelope in the bale of old papers. The court, in deciding it to be lost money, reached its conclusion in the following manner: ‘1 The jury in the case now before this court might have found from the evidence that an envelope was picked up from the floor of the defendants’ paper mill by Ellen Quinn;' was opened by her and found to contain two fifty-dollar bills; that the bills were taken by her and the envelope returned to the floor; that the envelope was purchased by the defendants at' the rate of two and a half cents per pound, as waste paper, raw material, to be used in the manufacture of paper; that neither the seller of the envelope nor the buyer of it knew that it contained the bills in question, and only sold and bought and paid for the envelope; that the rightful owner •of the money is •still unknown. Had the notes or bills in question been lying upon the floor, uninclosed when found, the case would have fallen within most, if not all, the approved authorities.” In Deaderick v. Oulds, 86 Tenn. 14,
A few of the cases illustrating the other side of the proposition are the following: In Lawrence v. State, 1 Humph. (Tenn.) 228, it was held that a pocket book which a person had laid upon a table in a barber .shop, to remain there while he should get a bank bill changed, and which, on leaving the shop, he forgot to take with him, but for which he immediately returned to the shop, upon’ missing it, was. held not to be lost property. It had been formerly held in Porter v. The State, M. & Y. (Tenn.) 226, that lost property could not be the subject of larceny, and the Court in distinguishing the cases, said: “We answer that the pocket book, under the circumstances proved, was not lost, nor could the defendant be called a finder.” In McAvoy v. Medina, 11 Allen (Mass.) 548, a pocket book picked up in a barber shop was held not to be lost property, so far as to enable the finder to recover it from the barber to whom he had delivered it. The Court said: “ The property was vol-untaria placed upon a table in the defendant’s shop by a customer of his, who accidentally left the same there and has never called for it! The plaintiff also came there as a cus
' In order to vest in a finder the absolute right to property it must appear that the owner has voluntarily and wholly abandoned it, intending not to reclaim it. Tancil v. Seaton, 28 Grat. 601. But the finder of property, not so abandoned, has, ordinarily, a right of possession as against all the world except the rightful owner. Id; Armory v. Delamirie, 1 Strange 504; Bridges v. Kawksworth, 7 Eng. Law & Eq. 424; Bowen v. Sullivan, 62 Ind. 288; McAvoy v. Medina, 11 Allen (Mass.) 549; Mathews v. Harsell, 1 E. D. Smith (N. Y.) 393; Hamaker v. Blanksworth, 90 Pa. St. 377; Durfee v. Jones, 11 R. I. 588; Deaderick v. Oulds, 86 Tenn. 14. But he holds it as a quasi depositary for the benefit of the
It is not our purpose here to approve the doctrine of all the decisions referred to, nor to attempt to deduce from them all 'the principles which they declare and enforce. In some of ithem, the controversies arose between employer and employe; iin others between the finder and the owner of the premises on which the discoveries were made; and in others between the .‘State and the finders on charges of larceny. As we have seen, ;the owner of the premises is, under some circumstances, • entitled to the custody and possession of the property for the ’¡benefit of the owner, as against the discoverer thereof, while 'in others he is not; but, in the former class, it was determined that the property had not been lost, but only forgotten and left where it had been designedly placed. We apprehend that in none of them was there an absolute right of property vested in the finder. The vesting of such a title is .in every case dependent upon whether the property has been .abandoned by the true owner. The finder has ' a right of possession independently of that question, but certainly not ,any more than that and possibly a presumptive, contingent right of property, both of which fail on the appearance of the true owner. To justify the finder, in appropriating money or other property to his own use, the circumstances must be such as to afford reasonable ground for the belief ■¡that it has been voluntarily abandoned and is, therefore, lost
These conclusions lead to the question of ownership in the defendant’s decedent as the only issue in the case. The loss or concealment and the finding are uncontroverted facts. Nothing is denied except the assertion of title in the defendant. All the evidence bearing on that question is favorable to him. The money was found in a stove which his decedent had owned and used and which had been but recently removed from her premises. She had been a woman of sufficient means to enable her to possess the amount of money found in it, and she had, only a short time before her death, possessed a small precious package similar to the one found and which, tested by its weight and the sense of touch, seemed to contain coin — gold, a witness says. The man in whose possession the stove was, a witness in the case, does not claim that he or any member of his family placed the package in it, or knows how it came to be there. The case made by the defendant on the issue is unopposed bj'- anything except the bare possibility that some person other than the decedent may have placed it there, and the slight circumstances that' Helmick poured some ashes out of the stove before removing it, and left it in the alley a week before putting it in his outbuilding, facts, if they be so, not necessarily inconsistent with the conclusion to which the evidence directly tends. The boy says the package “was lying right on top of the ashes.” Fisher says that, when he looked in the stove, after
The wrongful tendency of the two instructions given at the instance of the plaintiff is apparent. Thejr assume the existence of conflict in the evidence by submitting to the jury the question of preponderance notwithstanding the evidence of title in the defendant is not met or repelled, in any appreciable degree, by the circumstances relied upon by the the plaintiff i'n resistance. Of the same character is the instruction given by-the court in lieu of those requested by the defendant, and the error of the court in giving each of them is manifest. The reason assigned for error in giving plaintiff’s instructions apply to defendant’s instruction No.. 1. As the evidence all tends to sustain the position of the defendant, his request for an instruction to the jury to find for him should have .been complied with. Defendant’s instruction No. 3 was properly refused. His mere belief of title in his decedent and what was said at the time the money was delivered to him constitute no defense to the action. His instruction No. 4 is correct in principle, but is objectionable on two grounds. First, it is purely abstract. Second, it is partial and fails to cover the entire case or any" hj^pothesis for
The object of defendant’s proposed instruction No. 2 was to bar recovery by lack of proof of demand made upon him for the return of the money before the action was commenced. Having received the money in his individual capacity, with\ the understanding that he should ascertain whether it be- ; longed to Ellen Hughes’ estate, and, if not, that he would return it, and concluded that it did and charged himself with it as her administrator, he attempted, by so doing, to terminate the bailment; and, by suing him as administrator — proceeding against him as alleged owner in his fiduciary capacity ■ — the plaintiffs assented to the termination of the contract of bailment. This makes the defense rest upon a claim of title independent of any contractual relation with the plaintiff, express or implied, to which the plaintiff opposes a hostile claim to the right of possession, based upon the fact of finding. Duty to make demand before suing arises out of contract between the parties, and obtains when no duty to perform devolves upon the defendant until request has been made. Thus demand need not be shown when the taking was wrongful, although the tort might be waived and as-sumpsit maintained on the implied promise to pay the value of the property. 21 Ency. Pl. & Pr. 1083. Mutual termination of the contract of bailment as suggested justifies.
Exception was taken to the action of the court in overruling an objection to the complaint, on the ground of insufficiency, after it had been amended; but, as it shows the object-of the action is to recover the gold in question, we think it sufficient. The statutory civil action in justice’s courts is entirely informal and remains so in the circuit court on appeal.
For the errors herein noted,the judgment must be reversed, the verdict set aside, a new trial allowed and the case remanded. My reasons for remanding and not rendering judgment here are those stated in Ruffner Bros. v. Duchess Ins. Co., 53 S. E. 943, in which my associates do not fully concur. They, however, for reasons which I do not undertake to state, unite in remanding this case.
Berersed and Bema/nded.