Berman v. Kling

• Decision Date: 18 December 1908
• Citation: 81 Conn. 403,71 A. 507
• Court: Connecticut Supreme Court
• Parties: BERMAN v. KLING.

71 A. 507

81 Conn. 403

BERMAN

v. KLING.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from City Court of New Haven; Albert McC. Mathewson, Judge.

Action by William Berman against Lawrence Kling to recover the value of tinner's tools which plaintiff alleged were converted to the use of defendant. There was a judgment for plaintiff, and defendant appeals, alleging errors in refusing to set aside the verdict as being against the evidence, in refusing to direct for defendant, and for errors in the charge of the court. Reversed, and new trial ordered.

Charles S. Hamilton, for appellant. Carl A. Mears, for appellee.

RORABACK, J. The complaint in substance, alleges: That on or about January 1, 1908, the defendant had in his possession certain articles of personal property belonging to the plaintiff. On said day the defendant used said property, and permitted others in his employ to use them, without authority from the plaintiff, and thereby converted the same to his own use. Said property has never been returned to the plaintiff, although the plaintiff has demanded the same from the defendant.

Prom the finding it appears that the following facts were substantially conceded: That the plaintiff was a tinner who had been in the employ of the defendant about eight months when he stopped work in consequence of a strike. When the plaintiff left, certain tinning tools belonging to him were locked in his chest in the defendant's shop. Two or three days thereafter the defendant made search for soldering irons belonging to him which the plaintiff had been using, and, being unable to find them, the defendant opened the plaintiff's tool chest by unscrewing the hinges, and took therefrom the missing tools. A few days after the plaintiff stopped work, he called at the shop of the defendant, and found his chest open and some of his tools missing. These tools and chest had been in the possession of the defendant from the time the plaintiff stopped work on December 1, 1907, until the strike was ended about two months later. The plaintiff claimed that he had shown that his tools had never been returned to him, although demanded from the defendant. The defendant claimed to have proven that he had not touched, taken, or used, or given any person permission to take or use, the tools in question; that he simply opened the plaintiff's tool chest for the purpose of recovering his own tools which the plaintiff had stored therein. The alleged conversion of the plaintiff's tools by the defendant was the controlling issue presented by the pleadings and the claims of the parties.

The court charged the jury as follows: "If the defendant had not touched this chest, then his responsibility regarding the tools and chest would have been very slight, if any. But, according to the evidence of the plaintiff and defendant, the chest was broken into by the defendant, and according to a part of the evidence, as to which you will recall, the chest was left unlocked; that is, broken open, and not being secured by the defendant after he had broken it open. His responsibility was increased in that case, and, if you find in that case that on account of his opening the box the tools were lost or used by the defendant, then the responsibility of the defendant was by that fact increased, and he may, on account of his breaking open the chest and leaving it in this condition, become liable for the tools, provided you find it was on account of his negligence. As I say, the defendant had the right, if his tools were locked up in this chest, to open it with the least possible damage, but by doing so he assumed a responsibility which was not attached to him up to that time, and then, further, if you find that he left the chest as secure after he had broken it open as it was before, then this responsibility would not be any greater than it was before that, and he would be liable only for slight care in case the tools or chest became lost." In this there was error. The complaint alleged a taking and conversion of the plaintiff's tools by the defendant. The instructions directed the attention of the jury to other and different elements of liability. The instructions did not confine the attention of the jury to the case stated in the pleadings, but the jury were given to understand that they might find against the defendant upon a cause of action foreign to the issue. This charge assumes that the plaintiff's cause of action was based upon negligence in breaking and leaving open the plaintiff's chest containing his tools. This assumption was...