Berio v. Gay, 1371.
| Decision Date | 20 April 1921 |
| Docket Number | 1371. |
| Parties | BERIO v. GAY et al. |
| Court | U.S. Court of Appeals — First Circuit |
Hugh R Francis, of San Juan, P.R. (Francis & de la Haba, of San Juan, P.R., on the brief), for plaintiff in error.
Henry G. Molina, of San Juan, P.R. (M. Rodriguez Serra, of San Juan, P.R., on the brief), for defendants in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
In the complaint in this case the plaintiff alleged that he was the owner of six boxes and one bale of dry goods, all of the value of $1,492.26, which were taken on or about August 3 1914, by the defendants, without any authority from him, from the American Railroad station at Bayamon, Porto Rico, and carried to their storehouse at Corozal, Porto Rico; that the defendants had continued in possession of the goods, and, although requested to deliver them to him, they had refused to do so. The plaintiff prayed judgment for the delivery of the goods or their value, to wit, the sum of $1,492.26, together with costs and disbursements.
In their answer the defendants admitted that they received the goods on or about said date and carried them to Corozal, but claimed that they did so with the consent and at the request of the plaintiff, in accordance with an agreement with him. They denied that, at the time of the commencement of this action, they or either of them were in possession of the goods described in the complaint, and they further alleged that all of said goods were totally destroyed by fire at Corozal on the night of August 3 or 4, 1914, and that they were in no way responsible for said fire, and never received any sum or sums whatever for the loss of said merchandise.
The plaintiff admitted that he made a contract with the defendants to transport a particular shipment of goods received by him at one of the railroad stations in Bayamon but denied that this contract covered goods consigned to him and received at the American Railroad station.
The defendants claimed that their contract with the plaintiff covered the transportation of all goods consigned to the plaintiff and received at either railroad station at Bayamon.
The storehouse of the defendants in Corozal, where the defendants placed the goods, was a back room of their store; and on the night that the goods were placed in the storehouse a fire broke out in an adjoining building, and quickly spread to the defendants' store, and completely destroyed it. There was no evidence that the fire was caused by any negligence of the defendants; but all the evidence showed that it originated in a building occupied by another. There was conflicting evidence in regard to the destruction of the plaintiff's goods. Witnesses for the plaintiff testified that boxes were taken out of the front door of the store into the street, and across to the plaza of a church nearby, and also that a box was taken out from the back storeroom through a side door into an alleyway, and there was testimony that one or more of the boxes, upon which were the initials of the plaintiff's name, were in a mass of goods in front of the store after the fire, and the consignor testified that the cases had upon them the initials of the plaintiff's name.
The defendants, on the other hand, and several witnesses, testified that all the goods of the plaintiff were totally destroyed by the fire. The plaintiff testified that he went to Corozal the next day after the fire and was informed by one of the defendants that all of his goods had been burned. He at first brought an action against the American Railroad Company, claiming that it had no authority to deliver the goods to the defendants, but was unsuccessful. In October, 1916, more than two years after the fire, he filed the original complaint in this case. To this there was a demurrer, on the ground that the plaintiff had not alleged that the defendants were in possession of the goods. The demurrer was sustained, and the plaintiff then amended his complaint by adding an allegation that the defendants were in possession of the goods, and upon this amended complaint trial was had.
A verdict was returned for the defendants, and the plaintiff has assigned as error certain instructions, and the refusal to give requested instructions and to admit certain testimony. The instructions to which exceptions were taken were in substance that the plaintiff could not recover unless possession of the goods by the defendants at the time of the commencement of the action were shown; that the manner in which the defendants obtained possession of the goods might be left out of consideration; that the suit was not one to recover damages, but to recover the specific goods described in the complaint; that if the jury believed that the goods were destroyed by an accidental fire, for which the defendants were not responsible, the plaintiff could not recover, but if the evidence convinced the jury that some of the goods were saved, the plaintiff could recover these, if there was evidence which identified them; and that the plaintiff could only recover the value of the goods if it were proven that the defendants had wrongfully parted with the goods after the commencement of the action. While the charge was long and somewhat involved, we think that the foregoing is a fair statement of so much of it as was excepted to by the plaintiff.
The jury were further instructed that, as the defendants had admitted that they received possession of the goods, there was a presumption that they were in their possession at the commencement of the action. The plaintiff was denied an instruction that, under the Civil Code of Porto Rico, interpreted in the light of the decisions of the Supreme Court of Spain and of the civil law, the plaintiff could recover the value of the goods as damages for their wrongful taking, without proof that the defendants were in possession of them at the time of the commencement of the action. He claims that he had only one right of action, which was one to recover possession of the goods, or, in case their possession could not be delivered, then their value, and says this right of action is conferred by section 354 of the Civil Code, which is in part as follows:
'The owner holds a right of action against the holder and the possessor of the thing in order to recover it.'
We think he was not confined to a suit to recover possession in order to recover the value of the goods, and that, under section 1803 of the Civil Code of Porto Rico, he had a right of action for damages against one who had wrongfully deprived him of his goods. This section reads as follows:
'A person who by an act or omission causes damage to another, when there is fault or negligence, shall be obliged to repair the damage so done.'
The construction placed upon this section by the Supreme Court of Porto Rico would seem to support this view. Gonzalez v. Collazo, 25 P.R.R. 656; Buso et al. v. Martinez, 18 P.R.R. 994, 997; Colls v. Municipality of Lares, 23 P.R.R. 805; Dottin v. Rigo & Co., 22 P.R.R. 382; Hernandez v. Benet et al., 22 P.R.R. 538; Pares v. Ruiz, 19 P.R.R. 323, 326. See, also, Porto Rico v. Emmanuel, 235 U.S. 251, 35 Sup.Ct. 33, 59 L.Ed. 215, and Arzuaga et al. v. Ortiz (C.C.A.) 266 F. 449.
We have no doubt that, under section 1803, a right was conferred upon the plaintiff to recover damages for the unlawful conversion of his property, and that he had as complete a remedy under this section of the Code as he would have had under the common-law action of trover, and that the right of action conferred by section 354 or section 466 of the Civil Code of Porto Rico can only be asserted against one who is in possession of the property sought to be recovered. It will be observed...
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