Anderson v. Kincheloe

• Decision Date: 31 July 1860
• Citation: 30 Mo. 520
• Parties: ANDERSON, Respondent, v. KINCHELOE et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 520

ANDERSON, Respondent,

v.KINCHELOE et al., Appellants.

Supreme Court of Missouri.

July Term, 1860.

1. The supreme court will not grant a new trial on the ground that an instruction unsupported by the testimony was given, unless the giving of such instruction was calculated to mislead the jury.

2. Courts should not give instructions amounting to a comment on the testimony, nor instructions calculated to mislead the jury by inducing them to attach undue importance to a portion only of the testimony, and to divert their attention from other facts entitled to consideration.

3. He who, knowing that he has no right to the possession of property, withholds the possession thereof from the true owner, who had wrongfully been deprived of the same, may be supposed to have assented to the wrongful act by which such possession was obtained.

Appeal from Carroll Circuit Court.

The defendants asked the court to give the following instructions: “2. The jury can not find against defendant Kincheloe unless they believe he authorized Dickenson wrongfully to obtain possession of said slaves from plaintiff, or afterwards withheld them from plaintiff, knowing that Dickenson had improperly brought said slaves away. 3. There is no evidence before the jury that defendant Kincheloe authorized or directed defendant Dickenson wrongfully to obtain possession of said slaves, nor that defendant Kincheloe withheld said slaves with a knowledge of any improper conduct on the part of said Dickenson. 4. Defendant Kincheloe is not responsible for any tortious or wrongful act or conduct of defendant Dickenson, unless he authorized the same, or knowingly ratified the same. 8. If the jury believe that plaintiff was legally entitled to the possession of the slaves in controversy in virtue of the alleged transfer thereof by said Gratz, the mere possession of said slaves by defendant Kincheloe would not render him liable to plaintiff in this action.” Of these instructions the court gave the fourth, and refused the others.

The court gave the following instruction of its own motion “10. The jury can not find against the defendant Kincheloe unless they believe he authorized defendant Dickenson wrong fully to obtain possession of said slaves from plaintiff, or afterwards withheld them from plaintiff.”

The other instructions commented on by the court, together with the facts in evidence, are sufficiently set forth in the opinion of the court.

Troxell, for appellants.

I. Plaintiff showed no right to the possession of the slaves. There was no evidence that Dickenson was the agent of Kincheloe for the purpose of hiring the slaves to Gratz, or was authorized to submit the question as to their possession to arbitrators. The mere fact that the slaves were in possession of Kincheloe did not render him responsible for a wrongful conversion, nor did their mere retention by Kincheloe render him a trespasser ab initio. No asserted agency of Dickenson extended to an arbitration. The third and tenth instructions given to the jury were erroneous. The court improperly refused the second, third, seventh and eighth instructions asked by defendants. No authority to Dickenson to commit a trespass could be implied, nor could Kincheloe be held responsible for such trespass unless he had knowledge of its commission.

Hicks, for respondent.

I. Anderson had a right to the possession of the slaves. The court committed no error in giving or refusing instructions.

EWING, Judge, delivered the opinion of the court.

This was an action for the alleged wrongful taking and conversion of certain slaves. The petition alleges that in the winter or spring of 1859, one Henry H. Gratz hired of the defendant Kincheloe, of Carroll county, four slaves for the year 1859, and executed and delivered his promissory note to Kincheloe for their hire, and that said slaves were delivered by Kincheloe into the possession of Gratz, in Lafayette county; that in May, 1859, Gratz, being indebted to plaintiff, transferred the unexpired term of the hire of said slaves to him, and delivered possession thereof; that afterwards, in May, 1859, Dickenson came to Lexington and requested plaintiff to give up the possession of the slaves for Kincheloe, which being refused, it was proposed and agreed to that the matter be submitted to arbitrators; that said arbitration was accordingly entered into, and the slaves awarded to plaintiff for said unexpired term, which decision was mutually accepted by them as a final settlement of the matter in dispute. The petition further alleges that on the night of the following day on which the arbitration was had, defendant Dickenson wrongfully and secretly decoyed said slaves out of plaintiff's possession, and took and delivered them to the defendant Kincheloe; and that said defendants tortiously converted the possession of said slaves to their own use, and still keep possession of them from plaintiff, whereby he was damaged, &c.

The answer admits that Gratz hired from Kincheloe, about the time stated, the slaves in controversy, but denies that they were hired in the manner or upon the terms alleged; that said Kincheloe hired said slaves to Gratz to labor for him until December 25, 1859; and it was expressly stipulated in said contract of hiring that said slaves should be kept by said Gratz in the town of Berlin, Lafayette county, and not elsewhere, and that, in case they were removed from Berlin and especially to Lexington, Kincheloe might terminate the hiring and reclaim them; that the slaves were removed to Lexington by Gratz or plaintiff, or both, in violation of said agreement, and that plaintiff was well apprised of the terms of said contract of hiring; that the slaves were obtained from Kincheloe by plaintiff and Gratz with a knowledge of the latter's insolvency and with a fraudulent intent to deprive Kincheloe of their services. Kincheloe denies any knowledge of Dickenson's agency in taking the slaves from plaintiff's possession, and of the arbitration respecting them; denies that Dickenson had any authority from him to submit the...