Carberry & Casey v. Worrell

• Decision Date: 11 May 1891
• Citation: 68 Miss. 573,9 So. 290
• Parties: CARBERRY & CASEY v. WORRELL, USE A. B. BURNS
• Court: Mississippi Supreme Court

9 So. 290

68 Miss. 573

CARBERRY & CASEY v. WORRELL, USE A. B. BURNS

Supreme Court of Mississippi

May 11, 1891

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

On the trial of this case it was shown that after the sale of the stock of goods by the Vicksburg Liquor & Tobacco Co. to Miss Burns, it was replenished in her name, and privilege license was also taken out in her name, but there was no sign posted at the place of business until about the time of the levy. There was testimony tending to show that the goods were sold by the sheriff at a sacrifice. They brought $ 215.20. The value of the stock, as stated in the inventory introduced by plaintiff, was $ 1423.10. The verdict fixed the valuation on the day of the levy at $ 1000; interest being added at the time of trial, the verdict was for $ 1087.

At the instance of the plaintiff, the following instructions were given:--

"1. Should the jury believe from the evidence that the plaintiff was the owner of the goods at the time they were seized, then the jury will find for the plaintiff, unless she has forfeited her right to recover by reason of some one of the defenses set up in the defendant's pleas."

"2. The burden of proof is upon the defendants to prove and show to the satisfaction of the jury that the business where the goods were seized, and at the time they were seized, was being conducted in the name of P. T. O'Shea, and not in the name of A. B. Burns, if they rely upon this fact to justify the seizure and sale of the goods."

"3. If the business where the goods were seized was being conducted at the time the goods were seized in the name of A B. Burns, and not in the name of P. T. O'Shea, then the seizure was unlawful."

"4. The plaintiff had the right, through her agent, to employ P T. O'Shea as a clerk, and put him in her stores to sell her goods; and this fact would not by itself render her property liable for the payment of his debts."

"5. Should the jury believe from the evidence that McIntyre, as agent for plaintiff, was conducting, controlling and managing the business at stores Nos. 201 & 203 Levee street, for and in the name of the plaintiff, A. B. Burns, at the time the goods mentioned in the return of the sheriff were seized upon by him, and that P. T. O'Shea was there simply as a clerk or employe of the said McIntyre; that he was subject to McIntyre's orders, and was doing McIntyre's bidding and was conducting the business in the name of the plaintiff A. B. Burns, then the jury should find for the plaintiff."

"6. The jury, in fixing the value of the goods seized, are not bound by the return of the sheriff, but by the value as shown by all the evidence in the case."

"7. The court instructs the jury that if they believe from the evidence that the goods in question were the property of plaintiff, Miss Burns, then they must find for plaintiff to the extent of the actual value of the goods taken by the sheriff and sued for in this action, unless they believe from the evidence that from the time of O'Shea's taking possession of the property from McIntyre until the levy, he was conducting the business in his name, and the mere appearance of his being in the store selling goods is not sufficient evidence of his conducting the business in his name. It is lawful for a person to appoint an agent or clerk to sell her goods without the goods being subjected to the debts of the agent. In order to make them so subject, the business must have been conducted in the name of such agent in fact or to all appearances, so far as buying goods and otherwise carrying on the business."

"8. If the jury find for plaintiff, they must add six per cent. interest on the actual value of the goods from the date of the levy."

"11. The jury must not consider any of the items of the book introduced by plaintiff in evidence, which were not checked off by some one of the witnesses who testified as to the value of the goods."

At the instance of defendants, the court gave the following instructions: --

"1. The court instructs the jury that if they believe from the evidence that, although the stock in controversy was the property of Miss A. B. Burns, under a valid bill of sale from the Vicksburg Liquor & Tobacco Co. to her, yet if they further believe from the evidence that prior to such sale, P. T. O'Shea was the owner of said stock, and afterwards continued to sell goods in said stores, in the usual course of trade, and not merely occasionally, and made his home and location in his former store, and that no sign disclosing Miss Burns' ownership was posted thereon conspicuously in letters easy to be read, they will find for defendants."

"2. The court instructs the jury that the fact that the sheriff or the defendants' counsel had notice prior to the levy of the execution of Miss Burns' ownership, is an immaterial circumstance, if they further believe from the evidence that after Miss Burns' purchase, O'Shea continued apparently in charge thereof as owner, or as agent continued in the conduct of the business, and that no conspicuous sign over the door of the store-house disclosed Miss Burns' ownership, in letters easy to be read."

"3. The court instructs the jury that the licenses posted in the store of Miss Burns in her name, were not such signs of the ownership of the business as the law requires; if they believe from all the evidence, that after Miss Burns' purchase of the goods O'Shea continued apparently in charge of the business and its conduct, and there was no other sign but the said licenses, they will find for the defendants."

The italicized words in these instructions indicate modifications made by the court over objection of defendants.

The court refused to give the following instructions asked by defendants: --

"4. The court instructs the jury that if they believe from the evidence that the two sales, from O'Shea to McIntyre, and back from McIntyre to O'Shea's cousin, Miss Burns, were made without consideration, or for the purpose of defrauding O'Shea's creditors, they will find for defendants.

"5. The court instructs the jury that if they believe from the evidence that the sale of the stock from O'Shea to the Vicksburg Liquor & Tobacco Co. was made for the purpose of hindering, delaying or defrauding the creditors of P. T. O'Shea, they will find for defendants.

"6. The court instructs the jury that the burden of proving every material element of her case is on the plaintiff, and if she has failed to do this to the satisfaction of the jury, they must find for the defendants."

Judgment in favor of plaintiff for $ 1087.00 and costs. Motion for new trial overruled. Defendants appeal. The opinion contains a further statement of the case.

Affirmed.

Henry & Thompson, for appellants,

Filed an elaborate brief, as to the questions decided by the court, making the following points:

1. The court erred in refusing a continuance, and forcing defendants to a trial in the absence of their witnesses. There should have been positive proof that it was impossible to procure the attendance of the absent witnesses. On this point we refer to 4 How. (Miss.) 330; 25 Miss. 121; 33 Ib. 383; 44 Ib. 669.

2. The opinions of expert witnesses are only competent when based upon facts either admitted or assumed to be true, and the jury should know all the facts upon which the opinion is based. Stevens' Dig. of Ev. 54; Rogers on Expert Testimony, §§ 22, 31, 38, and authorities there cited; 3 Met. (Ky.) 18.

Expert testimony is merely evidence, and the jurors are the judges of its weight. Rogers on Expert Testimony, § 37; 1 Sawyer C. C. 512; 1 Curtis C. C. 1; 30 Miss. 110; Head v. Hargrave, 105 U.S. 45.

The witness should not be examined in such manner as to compel him to pass upon a question of fact, and thus invade the province of the jury. Rogers on Expert Testimony, § 24; 121 Mass. 446; 15 Wall. 9.

In this case the expert witnesses merely testified from seeing the inventory. They had no knowledge of the quality, condition and class of the goods, and these facts were not before the jury in giving the opinion. Without this the evidence was incompetent. Wharton's Ev. § 447; 14 Barb. 206; 12 N.Y. 538; 61 Ib. 624; 2 Allen, 296; 13 Gray, 546; 37 N.H. 23; 47 Ib. 120; 66 Ind. 94; 70 Ib. 349; 65 Miss. 205; 14 Gratt. 529; 28 Ga. 237; 58 Mo. 425; 40 Mich. 120; 28 Ohio St. 547; 39 Iowa 615; 5 Redf. 284; 52 Me. 304; 35 Vt. 415; 39 Md. 251.

The experts here were not competent to testify as to the value of articles outside of the lines in which they dealt. The articles that were properly checked and embraced within the sworn estimates, only amounted to $ 134.13 in value, and this was all that the plaintiff was entitled to recover upon her own theory of value, and assuming that the inventory was correct.

3. In the fifth instruction, which was refused, defendants asked the court to charge the jury that if they believed the sale of the goods from O'Shea to the Vicksburg Liquor & Tobacco Co., or from it to Burns, was made with the intent to hinder or defraud creditors of O'Shea, the verdict should be for defendants. Under the evidence this instruction should have been given. It is not disputed that during Miss Burns' absence, O'Shea was in complete control of the business, and he was there at the time of the trial, and there were other facts warranting this instruction. The court refused to submit the question of fact to the jury whether these purchases were fraudulent. This was error. 50 Miss. 648; 54 Ib. 79.

4. It was error to modify the instruction asked by defendants as to the effect of § 1300 of the code. Under this statute, in the absence of a true sign, the external and palpable indicia of ownership stamps real ownership upon the property used in the business as...