169 P. 161 | Utah | 1917
In this action plaintiff seeks to recover from the defendant Harry W. Kleeb the value of certain money and checks amounting to $1,575.77 claimed to be the property of plaintiff. The complaint alleges that said defendant Kleeb wrongfully, and without the consent of plaintiff, took such money and checks from the possession of the plaintiff on or about August 30, 1914, and that part of the money so taken, to wit, $495.69, thereafter was, on or about the month of November, 1914, delivered to and passed into the possession of the defendant Homer. The answer of defendant Homer admits the possession of $495.69 and admits that he received the same from his codefendant Kleeb, but upon information and belief states that he does not know whether the same is part of the property belonging to plaintiff and so taken from plaintiff by Kleeb. The answer of defendant Kleeb denies the taking, and also denies the right of the plaintiff to any of the property in the possession of Homer. As a separate and further defense defendant Kleeb alleges that the matters in issue in this action had been adjudicated in the city court of Salt Lake City in an action commenced by him on or about the 20th day of April, 1915, against his codefendant Homer for the possession of said sum of $495.69, in which action the plaintiff herein intervened and filed a complaint in intervention and among other things, alleged the wrongful taking by Kleeb of the money and checks mentioned in the complaint and also the ownership and the right to the possession of the particular money, namely, $495.69 in the custody of Homer, and that upon the trial of the issues in that case before such city court the defendant Kleeb was adjudged to be the owner and entitled to the said property in the custody of Homer, and that judgment was
The record discloses that plaintiff is engaged in the drug business in Salt Lake City and operates and owns numerous stores, which are designated by numbers; that among its places of business plaintiff has a store on Main street known as No. 5; that Kleeb was a professional pharmacist and had been employed by plaintiff for some eight or nine months prior to August 30, 1913, and at least part of the time he had been employed at store No. 5 as a drug clerk and knew the combination of the safe located therein. The record further discloses that about four or five days prior to August 30, 1914, Kleeb quit the employ of the plaintiff and apparently was arranging to leave Salt Lake City; that during Saturday, August 29, 1914, he called at the store in question, also at other places of business of the plaintiff, and had conversation with certain employees who were his acquaintances, and advised them that he was leaving town that evening. It is further disclosed that, during the week after severing his relationship with plaintiff, Kleeb received the salary due him and disposed of certain belongings, consisting of the furnishings of his room, and withdrew a small amount of money from the bank. It appears that Kleeb did not leave town on the evening of the 29th, but registered under the name of H. W. Kreel at the Semloh Hotel in Salt Lake City, and was known to be around that hotel about the hour of 1 o ’clock a. m. on the morning of the 30th; that from that time on until about seven o’clock of the same morn
The money taken from Kleeb at the time of his arrest was kept by the officers and was put in evidence at the burglary trial. It was then turned over to the defendant Thomas Homer as the clerk of the district court where said burglary trial was had. , At the termination of the criminal trial, the judge made an order directing said clerk to deliver to Kleeb the money in his hands which he had received as herein stated. That was not done, and suit was instituted in the city court of Salt Lake City by Kleeb against Homer to recover that' amount. In that suit plaintiff herein intervened and made claim to the money as alleged in Kleeb’s answer in this action. Trial was had in the city court which resulted in a verdict for Kleeb, and from that judgment an appeal was taken to the district court of Salt Lake County. That appeal was pending in that court and had not been disposed of at the date of the institution of this action, nor at the date of the trial of this action in the district court.
Much testimony was taken at the trial of this action respecting the amount of money left in the safe located in said store No. 5 at the time of closing on the morning of August 30, 1914;
Numerous assignments of error are made, but for the purposes of this opinion they may be grouped under three general heads: (1) Failure of plaintiff to identify any of the property in the possession of Homer as the property taken from plaintiff’s store on August 30, 1914; (2) the exclusion of certain evidence and the admission of other evidence during the trial of the action; (3) erroneous instructions by the court in submitting the questions to the jury.
It would serve no good purpose here to attempt to review the testimony tending to identify the property in the possession of Kleeb at the time of his arrest as being the property that was taken from the plaintiff’s store. In our opinion that question becomes immaterial if it is determined, as it
The principal objection as to the introduction of testimony
The plaintiff urges that the district court erred in admitting a witness, one Hathenbruk, to testify as to a conversation had between him and Kleeb on the train going frotn Salt Lake City to Ogden on the morning of August 30, 1914, concerning the departure of trains from Ogden, for the reason
There are other errors assigned concerning the admissibility of testimony, but from an examination of the record it is apparent that the admission of such testimony was not prejudicial to the defendant.
The errors assigned respecting instructions of the court to the jury and the failure to give requested instructions are sufficiently answered by the foregoing.
Prom a somewhat careful examination of the entire record in this ease we are satisfied that the jury was not only justified in the findings contained in the verdict, but that such findings are supported by the great preponderance of the evidence. In that regard we remark that we approve the statement made by the Nebraska court in the case of Ætna Indemnity Co. of Hartford, Conn., v. Malone, 89 Neb. 260, 131 N. W. 200, namely:
“In contriving means to cheat an owner out of Ms property, a thief should not be permitted to outstrip the courts in discovering a remedy to restore it when found.”
It follows from the foregoing that the judgment of the district court should be affirmed. Such is the order. Appellant to pay costs.