Co. Dakota Nat'l Guard Training Sch. v. Hughes

• Decision Date: 03 April 1923
• Parties: COMPANY A, FIRST REGIMENT, NORTH DAKOTA NATIONAL GUARD TRAINING SCHOOL v. HUGHES.
• Court: North Dakota Supreme Court

49 N.D. 626

193 N.W. 144

COMPANY A, FIRST REGIMENT, NORTH DAKOTA NATIONAL GUARD TRAINING SCHOOL

v.HUGHES.

Supreme Court of North Dakota.

Dec. 30, 1922.

On Rehearing, April 3, 1923.

Syllabus by the Court.

In an action for the conversion of personal property, the evidence is examined, and it is held sufficient to support a finding of conversion.

Witnesses who were members and directors of a corporation are not, by virtue of that fact alone, qualified to testify to the value of property of the corporation which is alleged to have been converted.

Bronson, J., dissenting. Grace, J., dissenting in part.

Appeal from District Court, Burleigh County; Coffey, Judge.

Action by Company A, First Regiment, North Dakota National Guard Training School, against Edmund A. Hughes. From a judgment for plaintiff, defendant appeals. Reversed and remanded.Newton, Dullam & Young, of Bismarck, for appellant.

F. O. Hellstrom and Theodore Koffel, both of Bismarck, for respondent.

BIRDZELL, C. J.

This is an appeal from a judgment for the plaintiff in an action for conversion. The case was tried in the district court of Burleigh county, before a jury, and resulted in a verdict of $6,000, plus interest from October 1, 1917, at 6 per cent. Upon this verdict judgment was entered.

The plaintiff is a civil corporation, organized in 1906 under the laws of this state (section 1425a, Rev. Codes 1899), for the purpose, among others, of maintaining an armory for Company A, First Regiment, North Dakota National Guard, as a training school. The articles provide that the corporation shall be managed by a board of directors of five members, one of whom shall be the captain of Company A, who shall be ex officio presidentof the board, all being members of the company in good standing, who shall hold office for a term of one year, and until their successors are elected and qualified under such by-laws and rules as may be adopted by the members of the corporation.

In March, 1917, Company A was called into federal service as a part of the Second Battalion of the North Dakota National Guard, and assigned to guard duty at Camp Frazier, near the Missouri River Railroad Bridge at Bismarck. July 1, 1917, this battalion was relieved of guard duty and mobilized at Fort Lincoln, near Bismarck; Company A being under the command of Capt. J. W. Murphy. Soon thereafter, the Second Regiment of North Dakota National Guards was organized, Company I and the Headquarters Company of this regiment being recruited in Bismarck, and placed under the command of Capts. A. B. Welch and H. T. Murphy, respectively. It seems that the First Regiment entrained for Camp Greene, N. C., on September 29, 1917, and the Second Regiment, October 1, 1917. Shortly prior to the departure of the First Regiment, according to his contention herein, the defendant had purchased some of the property belonging to the plaintiff, through negotiations with Capt. John W. Murphy, and by an instrument, or letter, dated September 29, 1917, it is contended that authority was conferred upon the defendant to take full charge of the armory building on October 1st, on behalf of plaintiff corporation, until the captain or his successor should return to Bismarck. On or about August 5, 1918, Capt. J. W. Murphy returned to Bismarck, where he died some time later. According to the defendant's contention, he turned back to Capt. Murphy, upon the latter's return, the property which he had not purchased.

It appears, however, that prior to the departure of Company A, and at about the time the defendant obtained custody of the plaintiff's building and contents, the armory contained the following equipment (the numbers of some of the articles being indefinite): Steel lockers, steam boiler, a large number of pairs of roller skates, a large number of chairs, a roll-top desk, a piano, punching bag and rack, horizontal bar, basket ball frames, lady's dresser, a rug, two rocking chairs, hot water heater, supply tank, cooking ranges, wall mirrors, gymnasium horse, office table, kitchen chairs, and kitchen table; and that upon the return of the company from military service, all, or practically all, of this material was gone. Hence this action.

[1] It is first argued that the court erred in not directing a verdict for the defendant, on the ground that there was no substantial evidence on which a jury could find that the defendant had converted the plaintiff's property, in that there was not shown to have been any evidence of a tortious taking or any intent to convert the property; that the testimony, when construed most strongly against the defendant, shows no more than negligence in the care of the property (negligence in the sense of nonfeasance, rather than misfeasance); that there was no demand for the property, and no unlawful detention. We are of the opinion that no error was committed in the denial of the defendant's motion for a directed verdict. There is affirmative evidence in the record to the effect that the defendant, in order to regain possession of the building from one O'Connor, to whom he had leased it, paid him a bonus in cash, and authorized him to take from the building about 70 chairs and a piano. The defendant disputed this, but he testified that he made a deal with Capt. J. W. Murphy, whereby he purchased the lockers for the Beulah Coal Mining Company, supposing there were a hundred of them, for $180, but that there were only, in fact, some 47 or 48 lockers; that the men who took the lockers for the mining company said that they wanted the water tank also, and he (the defendant) told them to go ahead and take it, but that he had not seen Murphy about the tank prior to that time. If it be assumed, therefore (though we do not so decide), that Capt. J. W. Murphy had authority to dispose of plaintiff's personal property, obviously this authority was not, under the evidence in this case, exercised further than to dispose of the lockers to the defendant. As the defendant himself has testified to the unauthorized taking of the water tank, and as other witnesses for the plaintiff have testified to the taking and disposal of other property under the defendant's direction, the evidence is clearly sufficient, in our opinion, to support a finding of conversion. Inasmuch as the same evidence goes to establish an original tortious taking, it is not essential under well-settled legal principles, to make or prove a demand for a return.

Error is assigned upon rulings of the trial court, denying motions to strike out the testimony of the witnesses Capt. Welch and Langley upon the question of value. It is shown in support of these assignments that the verdict of the jury, covering as it does practically the entire amount claimed by the plaintiff, must necessarily have been based upon the testimony of these witnesses as to the value of the items covered by their testimony. Capt. Welch testified, among other things, that the lockers were worth $20 each, the roller skates $6 a pair, the punching bag and frame $50, the rug $65, the roll-top desk $75, etc. He had personally purchased some of the skates; they had all been used, some for one winter, and some for two; he thought that they had paid $6 a pair for the skates, and he testified that they were worth that much after one or two winter's wear; that as to the remaining items, he was estimating the value, and that his estimates were not necessarily based upon knowledge of values. He disclaimed knowledge of the value of the boiler, for instance; but he nevertheless testified that it was worth $750. Again, on redirect examination, he stated that his values were based upon what he had paid “for these articles mostly,” but in the record it appears that, aside from the roller skates, he had made few, if any, purchases for the company.

[2] The testimony of the witness Langley as to value related principally to the piano. He stated that it was worth a thousand dollars; his knowledge of the value, according to his testimony, was gained from negotiations that he had had in Minneapolis, for the purchase of a new piano. Upon the record we think it clear that this witness was not shown to have been qualified to testify as to the value of the piano. Neither was the condition of the piano shown. In fact, one of the witnesses for the plaintiff, namely, O'Connor, who took the piano from the armory, testified that it was worth $85, and that while it was supposed to be, or to have been, an electric player piano, the player part was gone. Whether it disappeared before or after the alleged conversion does not appear.

The respondent insists that the testimony of the witnesses Welch and Langley, as to value, comes properly within the rule that an owner may testify to the value of his property; but we do not consider the testimony offered here to come within this rule. These witnesses were not the owners; neither does it appear, with the exception noted as to the skates, that either of them had purchased, or had otherwise become familiar with the value of the articles concerning which the testimony was given. Their interest was not any greater than that of any other member of the company, and if they might give testimony as to value on the sole ground of the interest they had as members of the company, or even as directors, then any stockholder or director of an ordinary business corporation would be competent to testify as to the value of any article of property owned by the corporation, even though he might never have acquired any knowledge whatsoever concerning it. We are clearly of the opinion that such is not the law, and that the ordinary rule of testimonial knowledge applies to these...