Brown v. Jerrild

• Decision Date: 09 October 1925
• Docket Number: Civil 2290
• Citation: 29 Ariz. 121,239 P. 795
• Parties: E. O. BROWN, Appellant, v. I. JERRILD, Appellee
• Court: Arizona Supreme Court

239 P. 795

29 Ariz. 121

E. O. BROWN, Appellant, v. I. JERRILD, Appellee

Civil No. 2290

Supreme Court of Arizona

October 9, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.

Mr Chas. Woolf, for Appellant.

Messrs Hayes, Stanford, Laney & Allee, for Appellee.

OPINION

LOCKWOOD, J.

About the middle of May, 1922, E. O. Brown, hereinafter called plaintiff, employed I. Jerrild, hereinafter called defendant as a clerk and meat cutter, to work in the former's store at Scottsdale at a wage of $20 per week. This employment continued until about August 1st, 1923, when plaintiff discharged defendant, claiming that the latter had not properly accounted for money received by him from the sales of merchandise belonging to plaintiff in the course of his employment.

Shortly thereafter plaintiff brought suit against defendant in the superior court of Maricopa county, and set up two causes of action in his complaint: The first was the ordinary count for money had and received. The second alleged the employment as above set forth, and receipt by defendant of money for merchandise belonging to plaintiff, and that the defendant did "wrongfully and unlawfully appropriate to his own use various amounts of the money of this plaintiff so received by defendant," the total being alleged to amount to $1,000. Defendant filed a general denial, and the case was tried before a jury. A verdict was rendered in favor of the defendant, and after plaintiff's motion to set aside the verdict and for a new trial had been denied, judgment was entered on the verdict, and plaintiff appealed from the judgment and order overruling the motion for new trial.

There are four assignments of error, which we will discuss in their order. The first is that the court erred in refusing to give the following instructions requested by plaintiff:

"Gentlemen of the jury, you are instructed that if you believe from the evidence that defendant had in his possession, when this suit was commenced, money which in equity and good conscience belongs to the plaintiff, then your verdict must be for the plaintiff. You are further instructed that if, under the evidence before you and the instruction given you by the court, plaintiff is entitled to recover from the defendant, then you must determine from the evidence the amount of money which the defendant, at the time this suit was commenced, had in his possession, and which in equity and good conscience belongs to the plaintiff, and your verdict should be for the plaintiff for the amount so found."

Such instructions do not correctly state the law applying to a case of this kind, and are far less favorable to plaintiff than the true rule. Under them defendant would not have been obliged to account for any money which he might have taken belonging to the plaintiff, if it was no longer in his possession at the time the suit was commenced, which, of course, is not the law. The court gave an instruction of its own motion which reads as follows:

"You are further instructed, gentlemen of the jury, that if you believe from the evidence in the case that the defendant was employed by the plaintiff . . . and in the course of such employment defendant sold goods and merchandise of the plaintiff, and received money therefor which he failed to account for and pay over to plaintiff, then your verdict should be for the plaintiff for the amount of money which you find from the evidence the defendant received from such sales of merchandise which you find he failed to account for and pay over to the plaintiff, if any, which said amount shall not exceed in any event the sum of one thousand dollars."

This is a correct statement of the law, and plaintiff cannot complain because the court refused to limit him to the recovery he seems erroneously to have asked for.

The second error refers to the giving of certain instructions by the court. It raises, in effect, three questions: The first is that the court imposed upon plaintiff too great a burden by the two following instructions:

"You are instructed, gentlemen of the jury, that under the law the burden of proof is upon the plaintiff to prove to your satisfaction by a preponderance of the evidence all the material allegations of his complaint. . . .

"You are further instructed that before the plaintiff is entitled to recover in this case, he must submit evidence of the truth, as I have stated, of all the material allegations of his complaint to such an extent that you are satisfied it outweighs the evidence to the contrary."

Two objections are made to the instructions above quoted. First, that they require proof of "all the material allegations of his complaint." It is the contention of plaintiff that, since his complaint was divided into two counts, it was not necessary for him to prove all the material allegations of both counts, but proof under either one would entitle him to a verdict, while under the instructions given the jury was told he must prove both.

Stated as an abstract proposition of law, this is doubtless correct. But if the instruction was error, the immateriality appears when we consider the two counts. The first was the ordinary one for money had and received. The second sets up specifically the way, and the only way, in which it was claimed defendant received and retained any money belonging to plaintiff. It was impossible to prove the allegations of one count without proving those of the other, and in the same manner a failure to sustain the proof on either count meant a failure on the other one. The jury could not have been misled by the instruction, even though we might think it technically incorrect.

The second alleged error in the instructions presents a more serious question. In the ordinary civil cause, not involving a claim of fraud, plaintiff is only required to prove his case by a preponderance of the evidence. We discussed a very similar instruction to the one in the case at bar in Wilkinson v. Phoenix R. Co., 28 Ariz. 216, 236 P. 704, and in the opinion therein we said:

"The court told the jury 'that the burden is upon plaintiff throughout the whole case of establishing to your satisfaction, by a preponderance or greater weight of the evidence, that defendant, . . .' ...