Cox v. McKinney

• Decision Date: 26 June 1923
• Citation: 258 S.W. 445,212 Mo.App. 522
• Parties: D. M. COX, Respondent, v. W. M. McKINNEY, Appellant
• Court: Missouri Court of Appeals

258 S.W. 445

212 Mo.App. 522

D. M. COX, Respondent, v. W. M. McKINNEY, Appellant

Court of Appeals of Missouri, Springfield

June 26, 1923

Appeal from Circuit Court of Butler County.--Hon. Almon Ing, Judge.

AFFIRMED.

Judgment affirmed.

Sam M Phillips for appellant.

(1) Under ordinary circumstances an opinion or conclusion of a party or witness with respect to matters in issue or relevant to the issue cannot be received. Kendall v. Bain, 46 Mo.App. 581; Muff v. Railroad, 22 Mo.App. 584; Laclede Land & Improvement Co. v. Good-no, 181 S.W 410; Hendley v. Globe Refining Co., 106 Mo.App. 20; Strothers v. McFarland, 194 S.W. 881. (2) Where possession is a point in issue the conclusion of a witness is to be rejected. Thistle v. Frostberg Co., 10 Mo 129; Kendall, etc. v. Vain, 46 Mo.App. 581; McClung v. Watson, (Tex. Civ. A.) 165 S.W. 532. (3) A witness cannot state that he has good title to or is the owner of land. Winter v. Stock, 29 Cal. 407, 89 Am. D. 57; Hirsh v. Beverly, 125 Ga. 657, 54 S.E. 678; Bleckley v. White, 98 Ga. 594, 25 S.E. 592; Evans v. Gerry, 174 Ill. 595, 51 N.E. 615; Leahy v. Hair, 33 Ill. A. 461; Mead v. Altgeld, 33 Ill. A. 373, (Aff. 136 Ill. 298, 26 N.E. 388); Stiles v. Steele, 37 Kan. 552, 15 P. 561; Hess v. Eggers, 8 Misc. 726, 78 N.Y.S. 1119; Jones v. Bristow First Nat. Bank, 39 Ikl. 393, 135 P. 373; Murray v. Ellis, 112 Pa. 485, 3 A. 845; Ex parte Bayamon, 7 Porto Rico, 145; Ex parte Wenar, 5 Porto Rico, 150; Foster v. Foster, 81 S.C. 307, 62 S.E. 320; Gonzales v. Adoue, (Tex. Civ. A.) 56 S.W. 543; Scott v. Witt, (Tex. Civ. A.) 41 S.W. 401; Scott v. Hughes, 66 W.Va. 573, 66 S.E. 737; Shifflet v. Morelle, 68 Tex. 382, 4 S.W. 843; Kirkpatrick v. Clark, 132 Ill. 342, 24 N.E. 71, 22 Am. S. R. 531, 8 L. R. A. 511; Winter v. Stock, 29 Cal. 407, 89 Am. D. 57; 22 Corpus Juris, 636, note 43. (4) Mary P. Quinn, relative to the plaintiff's right to remove the building from the lot in the event the land was sold by her and which conversation did not occur in the presence of the defendant, and of which he had no knowledge prior to his purchase of the property in question. As to defendant such conversation was hearsay and inadmissible. 22 Corpus Juris, 199; Whitley v. Babcock, 202 S.W. 1091; Dawson v. Flintom, 190 S.W. 972; Bonslett v. New York L. Ins. Co., 190 S.W. 870; Bross v. Rogers, 187 S.W. 38; Atkinson v. Am. School of Osteopathy, 240 Mo. 338, 144 S.W. 816; State v. Hyde, 234 Mo. 200, 136 S.W. 316, Ann. Cas. 1912D 154; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Whitman v. Giesing, 224 Mo. 600, 123 S.W. 1052; Gardner v. Metropolitan St. Ry. Co., 223 Mo. 389, 112 S.W. 1086, 18 Ann. Cas. 1166; Lindsay v. Bates, 223 Mo. 294, 122 S.W. 682; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; Neff v. Cameron, 213 Mo. 350, 111 S.W. 1139, 127 Am. S. R. 606; Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78; State v. Kelleher, 201 Mo. 614, 100 S.W. 470; State v. Woodward, 191 Mo. 617, 90 S.W. 90; State v. Faulkner, 175 Mo. 546, 75 S.W. 116; State v. Levy, 168 Mo. 521, 68 S.W. 562; Roe v. Versailles Bank, 167 Mo. 406, 67 S.W. 303; State v. Yandle, 166 Mo. 589, 66 S.W. 532; Rice v. St. Louis, 165 Mo. 636, 65 S.W. 1002; State v. Goddard, 162 Mo. 198, 62 S.W. 697; Shierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; State v. Fullerton, 143 Mo. 682, 44 S.W. 270; Gordon v. Burris, 141 Mo. 602, 43 S.W. 642; State v. Johnson, 115 Mo. 480, 22 S.W. 463; Davis v. Green, 102 Mo. 876, 11 L. R. A. 90; St. Louis v. Arnot, 94 Mo. 275, 7 S.W. 15; State v. Umfried, 76 Mo. 404; Bain v. Clark, 39 Mo. 252; Langsdorf v. Feild, 36 Mo. 440; Truesdail v. Sanderson, 33 Mo. 532; In re Largue, 198 Mo.App. 261, 200 S.W. 83; Minster v. Rothschild, 186 S.W. 753; Hinshaw v. Raines, 185 S.W. 1192; Strother v. McFarland, 184 S.W. 493; Fuller v. Tootle-Campbell, D. G. Co. 189 Mo.App. 514, 176 S.W. 1091; Swift v. Scoot, 181 Mo.App. 1, 163 S.W. 538; Johnson v. Mason, 178 Mo.App. 109, 163 S.W. 260; Whimster v. Holmes, 177 Mo.App. 130, 164 S.W. 236; Reinhart Groc. Co. v. Knuckles, 172 Mo.App. 627, 155 S.W. 1105; Disbrow v. People's Ice, etc., Co., 170 Mo.App. 585, 157 S.W. 116.

R. I. Cope, L. E. Tedrick and Sheppard & Sheppard for respondent.

(1) Even though the admission of this testimony had been error, it was harmless and not prejudicial to appellant's rights, as the facts surrounding respondent's claim of title were fully gone into. Sec. 1513, R. S. 1919; Hogan v. Ry. Co., 150 Mo. 36; O'Neal v. Kansas City, 178 Mo. 91; O'Keefe v. United Railways, 124 Mo.App. 613. (2) Rental value of property is a proper element to be considered in arriving at the value of such property, and is admissible for that purpose. Wabash Railroad Company v. Cockrell, 192 S.W. 443. (3) No motion to strike out the answer was made by respondent, and the matter was admitted, respondent's having waived the error, if any, by his failure to move to strike out the answer to the question. Haines v. C. R. I. & P. Ry. Co., 193 Mo.App. 453, 185 S.W. 1187; Boyers v. Lindhorst, 280 Mo. 5, 216 S.W. 536. (4) Even though respondent's instruction number one told the jury that if they found respondent was the "owner of the house and fixtures described in the petition, it is not erroneous, as the reference to the petition was 'not touching some essential controverted matter, but merely for the purpose of brevity of designation,'" and did not constitute error. Edelmann v. St. L. Transfer Co., 3 Mo.App. 503, 506; Corrister v. Council Bluffs Ry. Co., 25 Mo.App. 619, 627; Brown v. M. K. & T. Ry. Co., 104 Mo.App. 691, 696; Dwyer v. St. L. Transit Co., 108 Mo.App. 152, 161-2; Allen v. Springfield, 61 Mo.App. 270, 273; Shaw v. M. and K. Dairy Co., 56 Mo.App. 526; Britton v. City of St. Louis, 120 Mo. 437; State v. Scott, 109 Mo. 226.

BRADLEY, J. Farrington, J., concurs. Cox, P. J., concurs in the result.

OPINION

BRADLEY, J.--

Plaintiff sued to recover $ 500 for the conversion of a house and some fixtures therein. The cause was tried before the court and a jury, resulting in a judgment in favor of plaintiff for $ 245.50. Unsuccessful in motion for a new trial, defendant appealed.

Plaintiff alleged that on December 15, 1921, and for many months prior, he was the lawful owner and in possession of a frame building, one counter, one show case and some shelving, all situate on a certain described lot in the city of Poplar Bluff, the lot being the property of Mary P. Quinn; that on December 15, 1921 (the date of deed is November 15th), Mrs. Quinn conveyed the lot to defendant, and at the time advised defendant that the house and fixtures belonged to plaintiff, and that the same were not included in the sale. Plaintiff further alleges that immediately after the purchase defendant wrongfully took possession of the house and fixtures, and converted same to his own use.

Defendant answered claiming the house by virtue of his purchase, and denied that at the time of the purchase he had any knowledge of plaintiff's claim of ownership; that he purchased the lot and building thereon in good faith, and was an innocent purchaser for value.

Plaintiff established that he was the owner of the house and fixtures in dispute. He purchased the house from one Roberts in 1917, and had occupied and rented it since that time. Mrs. Quinn, who owned the lot, recognized plaintiff's ownership of the house, and collected from him $ 3 per month, while plaintiff, when he rented the house, received as high as $ 45 per month for it. The house was located on a small lot near the railroad and was used as a restaurant, and "hamburger joint." Mrs. Quinn testified that she told defendant before the sale that she "didn't claim the little shack Mr. Cox had the restaurant in, but the junk shop belonged to me that joined it; that was before I made the deal, and I told Mr. Cox I was selling the land, I told both Cox and McKinney about it." Plaintiff testified that before defendant purchased the lot he told him that he, plaintiff, owned the house. Plaintiff's wife testified to the same effect. Defendant offered evidence tending to show that he had no knowledge of plaintiff's claim of ownership.

Defendant makes several assignments, but all go to the evidence and the instructions. Defendant contends that it was error to permit plaintiff to testify that he was the owner of the building, that such evidence was a mere conclusion, and was an invasion on the province of the jury. Plaintiff testified that he purchased the building from Roberts, and that he owned it The ownership was an issue on trial, and plaintiff's statement that he was the owner was a mere conclusion. However, such statement, in our opinion, did not influence the jury in the least. Plaintiff testified that he purchased the building, and the only inference from the evidence of purchase here is that by the purchase plaintiff became the owner. There was no question, about plaintiff's ownership except defendant's claim by reason of his purchase of the lot. This was clearly submitted in the instructions. The question of ownership was gone into fully, and plaintiff's bare statement that he was the owner could not have misled. Such was harmless error, if error it was. In Strothers v. McFarland, 194 S.W. 881, Judge STURGIS speaking for this court quoted with approval form a note in 17 Cyc. 223, as follows: "Where the fact of ownership is stated, not as a question of legal title, but as a short method of stating a fact collaterally important and indicative of the co-ordinated class of acts, residence, exercise of control, etc., which usually attend ownership, a witness may state that he, or another, owns certain property, real or personal. In an action for the conversion of property witnesses who are personally familiar with the facts on which the ownership of such property is based can testify directly...