Davison v. Strickland

• Decision Date: 14 March 1978
• Docket Number: 55105,Nos. 55104,No. 1,s. 55104,1
• Citation: 145 Ga.App. 420,243 S.E.2d 705
• Court: Georgia Court of Appeals
• Parties: J. R. DAVISON v. Mrs. Martin STRICKLAND, Admrx. Joe PAYNE v. Mrs. Martin STRICKLAND, Admrx

Page 705

243 S.E.2d 705

145 Ga.App. 420

J. R. DAVISON v. Mrs. Martin STRICKLAND, Admrx.

Joe PAYNE v. Mrs. Martin STRICKLAND, Admrx.

Nos. 55104, 55105.

Court of Appeals of Georgia,Division No. 1.

March 14, 1978.

Rehearing Denied March 28, 1978.

Floyd W. Keeble, Jr., Royston, for Davison.

Rodger E. Davison, Royston, for Payne.

Walter J. Gordon, Hartwell, for appellee.

SHULMAN, Judge.

This case concerns itself with treasure trove and the writer will resist the urge to wax rhetorical and confine himself to the legal principles involved.

Plaintiff-administratrix, as representative of the true owner, brought a trover action for 111 gold coins allegedly possessed by defendants. Plaintiff alleged that a jar containing coins was found buried under or hidden in a chimney hearth, that the chimney was located in a house formerly owned by plaintiff's intestate, and that the chimney was built by the true owner and members of the true owner's family at a time when plaintiff's intestate owned, controlled and lived in the house. See Groover v. Tippins, 51 Ga.App. 47, 179 S.E. 634 (possessory right to treasure trove is in the finder as against all the world except the true owner). See generally, 36A C.J.S. Finding Lost Goods. Co-defendants Payne and Davison denied both the existence of the coins and plaintiff's possessory right, and further asserted that their own statements about the coins were a part of a hoax designed to enhance Payne's popularity with females.

This appeal is from a judgment entered on a jury verdict in favor of plaintiff-appellee and against the defendant-appellants jointly.

1. Appellants argue that there is no probative evidence regarding value to support the verdict. We disagree.

At the trial, two experienced coin dealers testified as to the value of the gold coins, assuming such coins in fact existed. The testimony was based on descriptions of the coins contained in appellants' admissions as related in witnesses' testimony and properly established that the absolute minimum value of 111 gold coins, sight unseen, was $30,000 to $40,000. See, e. g., Gibbs v. Clay, 137 Ga.App. 381(1), 224 S.E.2d 46 (testimony of market value admissible, even if based on hearsay, provided witness had opportunity of forming a correct opinion). Compare with Stephens v. Southern Discount Co., 105 Ga.App. 667(2), 125 S.E.2d 235.

The verdict is not subject to challenge as being conjecture or speculative because the alleged 111 coins were not produced at the trial or examined.

If, as the jury found, the coins existed and defendants were wrongfully withholding the coins, then the defendants, having made it impracticable to give an opinion as to the value of the 111 coins, may not assert that value was not properly proven and thereby profit from their wrongdoing. See generally Equitable Credit &c. Co. v. Murray, 79 Ga.App. 795, 802, 54 S.E.2d 650. Accordingly, this enumeration must fail.

2. Appellants argue that appellee failed to establish certain elements of a prima facie case and that the trial court erred in denying their motions for directed verdict.

There was sufficient evidence to support a verdict in favor of plaintiff-administratrix. The evidence showed that suit was brought by the administratrix as representative of the alleged true owner. See, e. g., Code Ann. § 113-901; Smith v. Turner, 112 Ga. 533, 37 S.E. 705. The evidence also shows that various demands had been made but that the co-defendants refused those demands by denying the existence of the coins and denied plaintiff's right of possession. Under these circumstances, that the plaintiff made demands in a personal capacity and did not make a formal demand in her capacity as administratrix does not require reversal. See, e. g., Kirkland v. Chrysler Credit Corp., 119 Ga.App. 759(1), 168 S.E.2d 650 (no demand necessary when demand would be useless).

The evidence was sufficient to establish ownership in plaintiff as administratrix. See, e. g., Neale v. Kirkland, 486 S.W.2d 165 (Tex.Civ.App.1972). Admissions relating to the discovery of the coins and describing their characteristics, even though the truth of the admissions was later denied by appellants, were sufficient to present a question for the jury. See, e. g., Haas & Howell Co. v. Godby, 33 Ga.App. 218(1), 125 S.E. 897.

It was also a jury question as to whether certain coins shown to various witnesses were part of the alleged gold coin cache (as co-defendants at one time claimed) or whether those coins were previously possessed and were represented as part of the cache to enhance the credibility of the alleged hoax. Haas & Howell Co., supra.

3. At trial, appellee-administratrix was permitted, over objection, to testify as to the content of telephone conversations with the wife of appellant Davison. There was testimony that Mrs. Davison told appellee that a lot of coins were found by Mr. Davison and another (later identified as co-defendant Payne) while tearing down the "Old Adams Homeplace" and that the coins belonged to the Davisons as the current owners of that property. There was also testimony that appellee heard Mr. Davison say in the background, "Tell her what we found." Mrs. Davison was not a party to the litigation and did not testify at trial. It is urged by both appellants that the conversation constituted inadmissible hearsay.

As to co-defendant Davison, who was present and overheard the conversation, the testimony was not inadmissible hearsay. Sisk v. Carney,121 Ga.App. 560(2), 174 S.E.2d 456.

As to both defendants, the admission of this testimony could not have been harmful error. Testimony of direct conversations between plaintiff-administratrix and each co-defendant was admitted and was virtually identical to the content of the phone conversations. This testimony was clearly permissible. Moore v. Dutson, 79 Ga. 456(2), 4 S.E. 169. Other testimony, unobjected to, from numerous witnesses about their conversations with the co-defendants was to the same effect. Foster v. Silvey, 104 Ga.App. 185(2), 121 S.E.2d 263.

4. Appellants claim that the trial court erred in charging on the law of intestate distribution as that law would relate to the alleged coins and heirs of the estate of the alleged true owner. Under the evidence of this case, if the jury found that the coins existed, then the jury was to determine the possessory rights of the respective parties, to wit: the finders of the alleged treasure trove or the representatives of the estate of the alleged true owner. Although the laws of intestate distribution were not relevant to that determination, see, e. g., DeLong v. DeLong, 134 Ga.App. 635, 215 S.E.2d 531 (title to personalty vests in administrator), we cannot see how defendants were prejudiced. In fact, the charge unfairly benefited defendants by charging the jury that if they found title in plaintiff's intestate, then they also had to determine whether others (who were at one time parties to the suit) were qualified as heirs to the coins.

5. In the original pleadings, appellee brought suit as heir of James Starr, the alleged true owner of the treasure trove. An affidavit was submitted by appellee, as heir, stating that "my grandfather, James Starr, was known to have built the chimney in 1910, or 1911 . . . and that he was known to bury his money." The original pleadings were subsequently stricken and amended. The amended pleadings alleged that appel...