Alex. Bright v. Miller

• Decision Date: 09 June 1902
• Citation: 68 S.W. 1061,95 Mo.App. 270
• Parties: ALEX. BRIGHT, Respondent, v. FRED MILLER, Appellant
• Court: Kansas Court of Appeals

68 S.W. 1061

95 Mo.App. 270

ALEX. BRIGHT, Respondent, v. FRED MILLER, Appellant

Court of Appeals of Missouri, Kansas City

June 9, 1902

Appeal from Barton Circuit Court.--Hon. H. C. Timmonds, Judge.

AFFIRMED.

Judgment affirmed.

VanPool & Martin and Cole, Burnett & Moore for appellant.

(1) The court erred in refusing appellant's instruction number 2. In an action of replevin the plaintiff must recover upon the strength of his own title, and not on the weakness of defendant's title. Kennedy v. Dodson, 44 Mo.App 550; Moore v. Carr, 65 Mo.App. 69; Grocer Co. v Shackleford, 65 Mo.App. 364. (2) Bright is certainly estopped to claim her as against Miller. Taylor v Zepp, 14 Mo. 482; Chouteau v. Goddin, 39 Mo. 229; Reynolds v. Kroff, 144 Mo. 433; State ex rel. v. Branch, 151 Mo. 639; Lumber Co. v. Kreeger, 52 Mo.App. 421. (3) The three essentials are present, viz.: withholding of truth when duty requires one to speak, reliance on the implied representation, and the consequent acting by the party injured. Deberry v. Wheeler, 128 Mo. 90. (4) If the owner of property stands by and sees another sell his property, and says nothing when he might with propriety speak, he shall not afterwards have the property. Skinner v. Stouse, 4 Mo. 93; Lawrence v. Owens, 39 Mo.App. 324; Walter v. Tielkemeyer, 72 Mo.App. 377. (5) Miller was certainly not at fault. The very best that can be said for Bright is, that he was grossly negligent; therefore, it is an elementary principle of the law of estoppel that, where a loss must fall on one of two innocent persons, the one most at fault must bear it. Brick Co. v. Sadring, 68 Mo.App. 18; Bank v. Wade, 73 Mo.App. 561; Pitman v. 16 to 1 Mining Co., 78 Mo.App. 441; Rice v. Groffman, 56 Mo. 434; Fusili v. Railroad, 45 Mo.App. 541. (6) And under the circumstances it seems unavoidable that the giving of the instruction number 6, when the juror asked the question, was highly prejudicial to defendant. State v. McKinzie, 102 Mo. 629; State v. Rutherford, 152 Mo. 133; State v. Hibler, 149 Mo. 486; Bank v. Currie, 44 Mo. 91; Kendig v. Railroad, 79 Mo. 207; Hackman v. Maguire, 20 Mo.App. 286; Copp v. Hardy, 32 Mo.App. 588.

Thurman, Wray & Timmonds for respondent.

(1) The court, in instruction No. 5 given on its own motion, embodies all of the legal propositions that are applicable to the case at bar in much more concise language than used in the instruction complained of. (2) There is no estoppel. Lumber Co. v. Kreeger, 52 Mo.App. 421; State ex rel. v. Branch, 151 Mo. 639; Thomas v. Railroad, 109 Mo. 205; Troth v. Norcross, 111 Mo. 636; Yarnell v. Railroad, 113 Mo. 578; Turner v. Thomas, 71 Mo. 596; Heizer v. Mfg. Co. 110 Mo. 605; Barney v. Railroad, 126 Mo. 372. (3) Inadvertence is not necessarily culpable negligence, and before negligence can be predicated upon inadvertence, it must result in the failure to perform some duty devolving upon the person who is inadvertent. Barton v. Railroad, 52 Mo. 257; Herman on Estoppel, sec. 1162; Smith v. Hutchinson, 61 Mo. 88; Ingals v. Ferguson, 138 Mo. 366; Garesche v. Inv. Co., 146 Mo. 451, and cases cited; Baker v. McInturff, 49 Mo.App. 509; Burke v. Adams, 80 Mo. 513; Hequembourg v. Edwards, 155 Mo. 522. (5) The court committed no error in giving instruction No. 6, under the circumstances. It was the imperative duty of the court to give the instruction in writing at the time it was asked by the plaintiff's counsel. Cunningham v. Snow, 82 Mo. 593; Harbison v. School District No. 1, 89 Mo. 186; Mitchell v. Bradstreet Co., 116 Mo. 243; Malon v. Johns, 126 Mo. 166; Fearey v. O'Neill, 149 Mo. 477; Yore v. Transfer Co., 147 Mo. 687; R. S. 1899, sec. 748.

OPINION

BROADDUS, J.

--This is a replevin suit begun in a justice's court, which was appealed to the circuit court, where on trial the plaintiff obtained a verdict and judgment, from which defendant appealed. The matters complained of are the giving and refusing of instructions.

Both plaintiff and defendant claimed to have bought the animal in controversy from one Carl Root, who was conceded to have been the owner. Plaintiff claimed to have bought the animal (a heifer) with other cattle from said Root in the spring of 1898, at the farm of D. G. Turner in Ozark county, Missouri, from where he shipped them to his farm in Barton county. The defendant claimed to have bought the heifer from said Root in February, 1899, at Root's feed lot on plaintiff's said farm. At the time plaintiff bought said animal from said Root, he (Root) had other cattle, and in the summer of 1898, brought two lots of cattle to plaintiff's farm, a part of which were sold during the summer, and the residue pastured by one Thomas Carlton until about November, at which time they were taken to the farm of plaintiff and fed there by Root during the winter of 1898 and 1899. These cattle were kept in a separate inclosure from those of the plaintiff. He had about sixty-four head, of which number he sold thirty-two, the tailing of his herd, consisting of twenty-six heifers, four cows and two calves, to the defendant Miller. Defendant, with his two sons and one E. M. Reeves, went to Root's feedlot on plaintiff's farm and received said cattle. Root picked out the least valuable of his cattle and turned them over to defendant. Plaintiff was present when these cattle were being separated from the rest of the herd, and there was testimony going to show that he participated in the business. The defendant introduced evidence strongly tending to show that the animal in controversy was among those received by him at that time. Plaintiff, however, testified that he did not believe such to have been the fact, and if such was the fact, he did not know it.

The defendant contends that the court erred in refusing to give instruction number two as requested. Said instruction is as follows: "The court instructs the jury that this is an action commenced by plaintiff to recover the possession of the heifer in dispute; that if the plaintiff recovers in this action he must recover upon the strength of his own title and not upon the weakness or strength of the title of any one else. The burden of proof rests upon the plaintiff, and before he can recover, he must show to the satisfaction of the jury by a preponderance of the testimony that at the time of the commencement of this suit he was the lawful owner of said heifer and had a right to the exclusive and immediate possession of the same, and unless you shall believe from the evidence that in May, 1898, in Ozark county, Missouri, plaintiff purchased said heifer from one Carl Root and was the owner of said heifer at the time of the institution of this suit, then your finding will be for the defendant Miller."

The court, of its motion, gave instruction No. 5, which is as follows: "Gentlemen of the jury: The burden rests upon the plaintiff (Mr. Bright) to make out his case by a preponderance, that is, by a greater weight of the evidence; unless he has done so your verdict should be in favor of the defendant (Mr. Miller). If you shall believe from the evidence that at the time of the commencement of this suit, the heifer in controversy was the property of the plaintiff, you will return a verdict in his favor. On the other hand, if you shall believe from the evidence that at the time of the commencement of this suit said heifer was not the property of the plaintiff, you will return a verdict in favor of the defendant and also find the present value of said heifer."

This instruction was evidently given by the court to supply said refused instruction. If it substantially contains all that is within the refused one, then the defendant can have no reasonable ground of complaint. It may be conceded that in an action of replevin the law is, the plaintiff must recover upon the strength of his own title, and not on the weakness of the defendant's title. Kennedy v. Dodson, 44 Mo.App. 550; Moore v. Carr, 65 Mo.App. 64; Grocer Co. v. Shackelford, 65 Mo.App. 364. But while such is true as an abstract proposition of law, is it necessary to instruct the jury in such language? We do not think it is, in fact, we are inclined to the opinion that a jury should not be so instructed. The proper manner to instruct a jury is to tell it, if it finds a certain fact or facts in dispute to be in a certain way, the law requires it to return a verdict such as directed by the court, without telling them what the law in the abstract may be, otherwise the tendency is to produce confusion in the mind of the juror. When the jury was told in said instruction No. 5, that the burden rested upon the plaintiff to make out his case by a preponderance, that is, by a greater weight of evidence, and if it should believe from the evidence that at the time of the commencement of the suit the heifer was not his property, they should find for the defendant, it was fully instructed in effect, that the plaintiff could only recover upon the strength of his own title, and not upon the weakness of defendant's title.

The defendant further complains of the action of the court in refusing instruction No. 3, asked by him. Said instruction is as follows: "You are further instructed that although you may believe from the evidence that in May, 1898, in Ozark county, Missouri, plaintiff purchased the heifer in controversy from said Root and conveyed said heifer, together with other cattle, to his farm in Barton county, Missouri yet if you shall further believe from the evidence that in the month of February, 1899, said Root, at plaintiff's said farm, sold and delivered a bunch of heifers to said defendant Miller, one of which was the heifer in controversy, and at the time said Root delivered said heifer to said defendant Miller, plaintiff was present and assisting said Root in the...