Bozeman Mortuary Association v. Fairchild

• Decision Date: 20 February 1934
• Citation: 253 Ky. 74
• Parties: Bozeman Mortuary Association v. Fairchild et al.
• Court: United States State Supreme Court — District of Kentucky

253 Ky. 74

Bozeman Mortuary Association v. Fairchild et al.

Court of Appeals of Kentucky.

Decided February 20, 1934.

1. Appeal and Error. — Judgment not expressly disposing of issue of damage claimed by plaintiff, but effectually denying claims by ignoring them, held "final judgment" in regard thereto.

2. Replevin. — Owner of stolen automobile could recover damages for wrongful detention and depreciation of automobile from bona fide buyer refusing to amicably surrender automobile.

3. Replevin. — Expenses incurred by owner in effort to recover stolen automobile from bona fide purchaser could not be recovered (Civil Code of Practice, sec. 388).

4. Appeal and Error. — Judgment, denying owner's claim for $300 damages for wrongful detention of stolen automobile and allowing bona fide purchaser $81.18 for improvements, involved amount sufficient to bring case within appellate jurisdiction of Court of Appeals.

5. Accession. — New battery, tires, and other accessories put on stolen automobile by bona fide purchaser in substitution for those worn out, held so united to automobile as to constitute integral part thereof, entitling true owner claiming automobile to accessories without reimbursing bona fide purchaser therefor.

6. Accession. — Ordinary repairs become part of thing repaired by accession.

7. Accession. — Willful trespasser, as against true owner, cannot acquire title to thing itself and cannot reclaim articles he has put on it or commingled with it, nor receive their value.

8. Sales. — Sale by thief, or by person claiming under thief, does not vest title in purchaser, as against true owner, though sale is made in good faith and in ordinary course of trade.

9. Accession. — Bona fide purchaser of stolen automobile could not, as against true owner, reclaim or recover value of new battery, tires, and other accessories put on automobile in substitution of those worn out.

Appeal from Rockcastle Circuit Court.

C.C. WILLIAMS and R.B. BIRD for appellant.

JONES & LEWIS and B.J. BETHURUM for appellees.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The amount involved in this case is small, but the principle is important.

The appellant, a corporation, engaged in the business of a funeral director, in Bozeman, Mont., had a seven-passenger Buick automobile stolen in that city on July 26, 1931. On August 9th following, one Phillips was arrested in Rockcastle county, Ky., while in possession of that machine and its custody was taken over by the sheriff, N.J. Tipton. The arresting officer testified that Phillips was arrested for "shooting up a filling station." The jailer testified that he was charged with "stealing an automobile." The county judge testified that no criminal charge against Phillips appeared on his docket. For some reason not expressly disclosed by the record before us, Phillips was not tried, but was released in about three weeks. On December 1st the sheriff, Tipton, as an individual, filed suit against Phillips in the Rockcastle quarterly court on a claim for "a loan of money and garage bill" for $152, and an attachment was levied on the machine. Without either Phillips or the owner of the stolen machine being brought before the court in any way, judgment was rendered six days after the suit was filed, the attachment sustained, and the car ordered sold. The sheriff, officially, sold the machine to himself, personally, for $100. The date is not disclosed in this record, but a few months later, according to the appellee Fairchild, the sheriff's son-in-law, he traded him another machine for that automobile

When the owner, the appellant, sought afterward to recover its automobile, it could not do so amicably. It then brought this suit against Fairchild and Mrs. Lillie Tipton, widow of the former sheriff, to recover the machine or its value, and for $300 damages for its wrongful detention. Every allegation of the petition was denied and a counterclaim asserted for $130.48 for a battery, muffler, tires, and a few minor parts, and oil and grease furnished the car, also repairs and storage. An amended petition set up a claim for $250 damages for the depreciation in the car while the defendants had it and for $100 to cover expenses to which the plaintiff had been put by reason of the refusal of the defendants to surrender the car. The allegations of this amended petition were not denied by answer or controverted of record.

After the evidence was introduced before a jury, the court discharged the jury and rendered a judgment to the effect that the plaintiff was entitled to the possession of the automobile, but that the defendant Fairchild, having placed upon the machine what the court determined to be "necessary improvements" or accessories at a cost of $81.18, was entitled to a judgment on his counterclaim for that sum. A lien was adjudged him therefor, and the machine ordered sold to satisfy that lien. Although the plaintiff proved that the machine had four new tires of high grade when it was stolen and was in good repair, that it had been run several thousand miles since it was stolen, and had been used continuously by Tipton and by the defendants since coming into their hands, Fairchild admitted that he had run the car 3,000 miles since he had it, and the allegations of the amended petition stood undenied, all of these things were ignored by the court. He dismissed the petition entirely against Mrs. Tipton, and as to Fairchild held that, while the plaintiff was entitled to recover possession of the machine from him, it was subject to the lien stated.

The appellee has moved to dismiss the appeal on the ground that the amount involved is only $81.18, hence that this court is without jurisdiction. The petition as against Mrs. Tipton was dismissed altogether. As to the other defendant: Although the judgment does not by its express language dispose of the issues of damage claimed by the plaintiff, it is nevertheless to be regarded as a final judgment in that respect, for it effectually denied the claims by ignoring them. The plaintiff duly excepted to this order or judgment. Any other conclusion than that this was a dismissal of the petition in that respect would attach undue importance to technicality. De Zavala v. Scanlon (Tex. Com. App.) 65 S.W. (2d) 489. The plaintiff had pleaded damages and introduced evidence to sustain the plea, although rather indefinite as to amount. It was entitled to have at least the matter of damages for the wrongful detention submitted to the jury. There was no evidence as to how much the car had depreciated by reason of the defendant's use, and the expense incurred in an effort to recover the automobile could not be recovered as a matter of law. Civil Code Practice sec. 388; Kentucky Portland Cement & Coal Company v. Steckel, 164 Ky. 420, 175 S.W. 663. The amount involved, therefore, is the sum of the proper damages claimed by the plaintiff, now appellant, plus the counter judgment for $81.18. The motion to dismiss the appeal, therefore, must be, and it is, overruled.

The law of accession, or acquisition of property by addition, had its origin in the civil law or Code of Justinian. From the beginning it has been regarded as the common law of England and so was transplanted into our jurisprudence. With the changing conceptions of justice and the growth of modern conditions, the original arbitrary rule has been ameliorated and made more varied in its meaning and application. This applicability to complex conditions renders hazardous any attempt to give a comprehensive definition.

A pioneer and perhaps the leading case in America is Chief Justice Robertson's opinion in Lampton's Ex'rs v. Preston's Ex'rs, 24 Ky. (1 J.J. Marsh.) 454, 19 Am. Dec. 104. The facts were that when Preston recovered possession of Lampton of a certain lot there was in the yard a quantity of unburnt and burnt bricks. The perplexing question was as to whom the bricks belonged, whether to Lampton, who did not own the soil out of which they were made but of which he was possessed at the time when he made the bricks, or to Preston, who was the true owner of the soil but who had no hand in making the bricks. After an exhaustive consideration of the principles and authorities, the final decision was reached. It was held that the unburnt brick belonged to Preston as the owner of the clay on payment for the molding, for although in the form of brick, and strictly speaking they could not be called clay, yet the material was still clay and might be combined in the common mass and constitute again a substratum for the soil, possessing all its previous qualities, so that the owner of the soil could identify the clay in the artificial form of soft brick and could recover it. But the burnt brick were held to belong to the manufacturer, Lampton, personally, because there had been an essential and radical change in the quality of the native clay through his labors. While the facts of that case are not in analogy to those of the case at bar, we may look to the opinion for the principles to be applied. We draw from it the division of cases of this nature into two classifications. Says the opinion:

"When the authorities speak of rights by `accession,' they generally mean, accession of other materials as well as skill or labor; as in the case of the cloth manufactured out of the wool of a stranger, and of the manufacturer. Here the fabric would belong to the manufacturer; because the several parcels of wool could not be identified and separated. * * *

"Right by `specification,' can only be acquired when, without the accession of any other material, that of another person, which has been used by the operator innocently, has been converted by him into something specifically different in the inherent and characteristic qualities, which identify it. Such is the conversion of corn into meal, of grapes into wine, etc. Here, although the meal possess no quality which the corn did not, yet it not only...