Mourikas v. Vardianos

Citation169 F.2d 53
Decision Date26 July 1948
Docket NumberNo. 5747.,5747.
PartiesMOURIKAS et al. v. VARDIANOS.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Bernard J. Pettigrew and Roy S. Samms, Jr., both of Charleston, W. Va., for appellants.

Stanley C. Morris of Charleston, W. Va. (Howard N. Luckey and Steptoe & Johnson, all of Charleston, W. Va., on the brief), for appellee.

Before PARKER, Circuit Judge, PRETTYMAN, Associate Justice United States Court of Appeals for the District of Columbia (sitting by special assignment), and BARKSDALE, District Judge.

BARKSDALE, District Judge.

The plaintiff, Mary E. Vardianos, instituted this action in September 1947 against the defendants, Gus Mourikas, Rebecca, his wife, Pete, their infant son, and Tom Mourikas, the brother of Gus, to recover the sum of $15,400 in currency alleged to have been converted by the defendants to their own use, which currency was the property of the plaintiff, jurisdiction being based upon diversity of citizenship. The court dismissed the action as to the infant, Pete Mourikas, and after the jury had returned a special verdict finding that the alleged conversion had taken place, the court added interest from the date of the conversion and rendered a judgment against the defendants in the sum of $17,540.60, with interest thereon until paid. From this judgment rendered against them, the said defendants have prosecuted their appeal to this court.

A great many of the facts are not controverted. The verdict of the jury in favor of the plaintiff has resolved all conflicts of testimony in her favor. All the facts of the case are strange and unusual, but it is interesting to note that the controverted facts are no more fantastic than the facts which were admitted. Without going into detail, the facts which the jury might fairly have found from the evidence may briefly be stated as follows:

At the time of the institution of this action, the plaintiff had remarried and lived with her husband in Ohio. During all of the occurrences which led up to the institution of this action, she was the widow of George Theofanous, who died in May 1945, leaving his entire estate by will to his wife. Both George and Mary Theofanous were natives of Greece, as were the defendants, Tom and Gus Mourikas. George and Mary Theofanous were naturalized American citizens, while Tom and Gus Mourikas were never naturalized. Rebecca Mourikas, the wife of Gus, is a native born American citizen. Prior to the death of George Theofanous, all of the parties had for many years been successfully engaged in the restaurant business in Charleston, West Virginia, and had accumulated substantial estates in money and property. Gus and Tom Mourikas retired from business about the middle of the year 1945, which was shortly after the death of George Theofanous. During his life time, George Theofanous regarded the Mourikas family as his close and confidential friends, and after his death, his widow considered Gus and Tom Mourikas her most dependable friends and advisers. During the lifetime of her husband, the plaintiff had assisted in the restaurant, but devoted most of her time to making a home for her husband and two infant sons. She took little or no part in the management of her husband's business, and has never become fluent in the English language. At the time of his death, George Theofanous had in a safe deposit box in a Charleston bank at least the sum of $16,500. Prior to July 1, 1945, Gus Mourikas, in the presence of his wife and his brother Tom, told Mrs. Theofanous that, because of war conditions, she should take most of her money out of her safe deposit box and keep it at home, but that it was advisable to leave some of the money in the box. He told her that he and the members of his family were keeping money in their home and had built a secret compartment under the flooring of their house for this purpose. Thereupon, the plaintiff removed $14,000 in currency from her safe deposit box, placed it in a green tin box, and concealed it in a closet of her home. On August 3, 1945, Mary Theofanous sold the restaurant business, which had been bequeathed to her by her husband, for $14,000 cash. She placed this $14,000 in currency in the same green box at her home, thus making a total of $28,000 in the box. Besides this sum of money, she had elsewhere other currency and bonds to a substantial amount. About August 9, 1945, Mary Theofanous and her two sons went to the Mourikas home for a visit. While there, a member of the Mourikas family, all of whom lived together in one house, mentioned that a mutual friend, who lived in Ohio, was sick, and Gus Mourikas suggested to Mrs. Theofanous that she should go and visit him. She replied that she could not go on account of the fact that she had her money in her house. Gus Mourikas then said that she could leave her money at the Mourikas home and take the trip. On Saturday afternoon, August 11, 1945, Mrs. Theofanous telephoned to the Mourikas home and inquired if they were still willing for her to leave the money with them. Tom Mourikas replied that he would talk to Gus about it, and a little later Gus came to the telephone and told her that she might leave the money with them. That night, Mrs. Theofanous and her son counted the money in the green box consisting of one $1,000 bill, one $500 bill, and a number of $100, $50, $20 and $10 bills. They tied the currency, other than the $1,000 bill, into bundles, each containing $1,000, made a tally sheet showing that the currency totalled the sum of $28,000, placed the currency in the box with the tally sheet on top, pressed the contents down tightly, clamped the lid of the box and locked it. They then wrapped the box in a newspaper and took it to the Mourikas home. Gus Mourikas and his wife were there, and Mrs. Theofanous gave Gus the box and told him that it contained $28,000. She offered to open the box and count the money, but found that she had inadvertently left the key at home. She suggested sending her son Tommy home for the key, but Gus said it would not be necessary to count the money, as whatever was in the box would still be in it when it was returned to her. So it was not counted. A little later, Tom Mourikas came in and was told how much money was in the box. Whereupon, Mrs. Theofanous and her sons departed, and the next morning went to Ohio to visit their friend. On Tuesday, August 14, 1945, Mrs. Theofanous, having been advised that the war was about over and the Government might stop selling bonds, telephoned to Tom Mourikas in Charleston and requested that some member of his family come to New Boston, Ohio, where she was visiting, bring her $4,000 in currency from the box, and help her persuade the sick friend to go to a hospital. Being reminded by Tom Mourikas that the box was locked and he had no key, she told him to break open the box and bring the money. The box was broken open, and Tom and Pete Mourikas withdrew $4,000 and drove to New Boston, Ohio, that evening, delivering the currency to Mrs. Theofanous the following morning.

Mrs. Theofanous and her two sons returned to their home in Charleston the evening of Sunday, August 19, 1945. The next evening, Mrs. Theofanous and her two sons went to the Mourikas home to get her money. Gus and his wife were there They seemed constrained — not cordial and friendly as usual. After some conversation, Mrs. Theofanous said she had come for her money, to which Gus replied that there was no hurry. Later, Mrs. Theofanous repeated her request, and asked Mrs. Mourikas to call a taxi for her. Gus again delayed, and did not go upstairs for the box until the taxi had arrived and its horn began to blow outside. Then Gus went upstairs, and after a considerable time returned with the tin box in a large paper bag tied around with string, stating that it took him some time to find the bag, that he had put the box in the bag so the taxi driver would not see it, and that there was no use to count the money. Mrs. Theofanous and her sons then returned home, and upon opening the box, they discovered that more of the money was missing than the $4,000 which had been brought to Mrs. Theofanous in Ohio. Greatly agitated, Mrs. Theofanous called the Mourikas home, and reported that some of her money was missing. Gus and Tom Mourikas came to her home, and when the money was counted, it was found that the box contained only $8,600. The $4,000 which had been brought to Mrs. Theofanous in Ohio, together with the $8,600 remaining in the box, made a total of $12,600, which left a shortage of $15,400, from the $28,000 originally in the box. It was for this sum of $15,400 that this action was instituted.

After Mrs. Theofanous discovered the shortage of the money in the box, she charged the defendants with taking it, and they denied that there was any shortage, or any responsibility for the shortage if such shortage existed. Numerous occurrences took place. Mrs. Theofanous and her two sons made repeated visits to the Mourikas home in the unavailing effort to find her money. She suggested "going to the law", but the Mourikases counseled against that. Gus Mourikas told her that no outsider could have gained access to the room in his home in which her money had been kept. He showed her the metal locker in which he had placed her money, which was in good condition, with its lock unbroken. Tom Mourikas told her to give them plenty of time, as it would take about a year's time for them to thoroughly search their home. At the suggestion and expense of Tom Mourikas, Mrs. Theofanous and her two sons, accompanied by Tom, made two visits to a fortune teller, whose occult powers were sadly insufficient to locate the missing money. Pete and Rebecca Mourikas searched the Theofanous home without results. Tom Mourikas told Mrs. Theofanous to leave a window of her home open at all times, so that if any member of the Mourikas family had the money he could drop it in without being seen. No trace of the missing money was...

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