Doherty v. Madgett

• Decision Date: 01 January 1886
• Citation: 2 A. 115
• Parties: DOHERTY v. MADGETT.
• Court: Vermont Supreme Court

2 A. 115

DOHERTY

v. MADGETT.¹

SUPREME COURT OF VERMONT.

Filed January 1, 1886.

This is an action of trover, to recover for a valise and its contents, which the defendant and his wife both refused to deliver to the plaintiff on demand. There was no question but the plaintiff was the owner of the property, and had the right to its possession on demand as against the defendant. He was the hired servant of the defendant, and, as such, assigned a room by the defendant in his house in which to sleep and keep his valise. His evidence tended to show that on a certain occasion he delivered the valise, then in his room, and the key thereof, to the defendant's wife, in the presence and with the approval of the defendant; and requested her to take care of the same, which she consented to do; and that having seen the valise in its usual place in his room at noon on the eighth of August, about one hour later he had occasion to go to it, and asked the wife for the key, and on going to his room found the valise gone; that the defendant and his wife were both present in the kitchen, which adjoined his room, and he there demanded the valise of both, and they both failed to deliver it, and claimed to know nothing about it; that he never obtained his valise or its contents. His evidence also tended to show that they knew the contents were valuable, and they, with the family, alone, had been about the house during the interval of time since be last saw it.

Exceptions from Orange county.

The facts are sufficiently set forth in the opinion of the court. Plea, not guilty. Verdict and judgment for the plaintiff at the June term, 1884, Rowell, J., presiding.

S. B. Hebard and Heath & Willard, for plaintiff.

The court properly refused to charge as to the proper form of action. The question as to the kind of action to he brought—that is, the appropriateness of the action—is for the court, and not for the jury. It was not the province of the court to instruct the jury as to the kind of action to be brought; and, being requested to charge what it was not the business of the jury to know, the court had a right to disregard the whole request. Vaughan v. Porter, 16 Vt. 266; Underwood v. Hart, 23 Vt. 120. The second request to charge was equivalent to asking the court to direct a verdict for the defendant. This could only be done in case the plaintiff failed to make out a prima facie case of conversion. The plaintiff, in two distinct views, made such a case. The first by showing the deposit of the valise with the defendant's wife in the presence of the defendant, and in his house, and with his consent; thus placing it in his dominion, possession, and control, and subsequently a demand and a refusal. This demand was made of the wife in the presence of the defendant, and the refusal was also in his presence, and demand was also made directly of the defendant at the same time and place. The valise came rightfully into the defendant's possession, and a prima fade case was made by thus showing possession, and demand and refusal; and the burden is then on the defendant to explain it away. Lockwood v. Bull, 1 Cow. 332; Packard v. Getman, 6 Cow. 757; Chamberlin v. Shaw, 18 Pick. 278; Hallenbake v. Fish, 8 Wend. 547; 2 Esp. N. P. 539; 2 Greenl. Ev. § 644; 2 Saund. note, 137, 138; Sibley v. Story, 8 Vt. 15. In the latter case Judge REDFIELD says: "It is, indeed, a well-settled rule of the common law that a mere depositary of goods is liable in trover for any abuse or even use of them; and equally, for refusal to deliver the thing bailed to the bailor on request." Possession by the wife is possession by the husband. Franks v. De la Pienne, 2 Esp. N. P. 588; Nelthrop v. Anderson, 1 Salk. 114. The defendant pleaded not guilty, and thus admitted that the plaintiff's name was James Doherty. The misnomer, if there was one, could only be taken advantage of by plea in abatement. Gould, Pl. c. 5, § 79; Boston Type Foundry v. Spooner, 5 Vt. 93. In a case circumstanced like this, the husband is liable solely for the wife's wrongful detention of the property. Shaw v. Hallihan, 46 Vt. 389; Chit. Pl. 93; 2 Saund. note, 137.

H. A. White and A. M. Dickey, for defendant.

The plaintiff's testimony showed a bailment of the key of the valise, and nothing more. It is said, in Story, Bailm. § 55, referring to gratuitous bailments: "In the first place, the thing must be actually delivered to the bailee if he has it not already in his possession." Again, (section 93,) Story says: "It is the change of possession which constitutes the known distinction between the custody of a bailee and that of a mere domestic servant; for in the latter case there is no change whatever of possession in the goods, but the possession remains in the master, and the servant has but a charge or oversight, whereas in the case of a bailee there is a positive change of possession." Again, in section 58, Story says: "In the next place, the deposit must ordinarily be made with some other person than the owner; for if he receives his own property, as we have already seen, he generally receives it discharged of the bailment." The key was delivered back to plaintiff by Mrs. Madgett upon demand. If this position is sound, a conversion could not be claimed, as the entire undertaking by the bailee has been fully performed. In a bailment of this kind, the bailee is bound to exercise only slight diligence, and is responsible for only gross negligence. Spooner v. Matton, 40 Vt. 300. We submit that on the facts no conversion is shown, and none can be claimed. It was error for the court to refuse to charge that if the jury found that the plaintiff's name was Robert McIntosh, and not James Doherty, he could not recover. Boston Type Foundry v. Spooner, 5 Vt. 93. The court were wrong in charging the jury that if the defendant's wife wrongfully detained the property in question after demand on her for the same, the defendant would be liable for the same. We insist that if the wife converted the property to her own use, then the wife should have been joined with the husband in this suit, and therefore the plaintiff could not sustain trover against the husband alone. In Davis v. Taylor, 41 Ill. 405, "the gist of the action being not the defendant's acquisition to the property, but the plaintiff's deprivation thereof, it is immaterial whether the defendant has kept, or destroyed, or delivered it to a third person. When the wife is guilty of such conversion, the action must be against her and her husband jointly." In Jillson v. Wilbur, 41 N. H. 106, it was decided that where the wife was guilty of conversion her husband must be joined in trover for the goods, the conversion being after marriage. Our statute makes the wife liable on her contracts in certain cases, and she may be sued alone upon them, and we submit that she should be liable for her torts alone.

Ross, J. This is an action of trover, to recover for a valise and its contents, which the defendant and his wife both refused to deliver to the plaintiff on demand. There was no question but the plaintiff was the owner of the property, and had the right to its possession on demand as against the defendant. He was the hired servant of the defendant, and, as such, assigned a room by the defendant in his house in which to sleep and keep his valise. His evidence tended to show that on a certain occasion he delivered the valise, then in his room, and the key thereof, to the defendant's wife, in the presence and with the approval of the defendant; and requested her to take care of the same, which she consented to do; and that having seen the valise in its usual place in his room at noon on the eighth of August, about one hour later he had occasion to go to it, and asked the wife for the key, and on going to his room found the valise gone; that the defendant and his wife were both present in the kitchen, which adjoined his room, and he there demanded the valise of both, and they both failed to deliver it, and claimed to know nothing about it; that he never obtained his valise or its contents. His evidence also tended to show that they knew the contents were valuable, and they, with the family, alone, had been about the house during the interval of time since be last saw it.

1. The defendant requested the court to charge the jury that if the plaintiff's testimony was all true, he could not recover in this form of action, but the action should have been case against the bailee. The court refused thus to charge, and the defendant excepted. The request was manifestly erroneous, in that it called for a charge to the jury to that effect. It embraced a pure question of law, which should be addressed to the court alone; but if addressed properly to the court, the court would have erred if it had complied with it. No principal of law is better settled than that the wronful detention of goods, by a naked bailee, from the owner, on proper demand, is a conversion. Sibley v. Story, 8 Vt. 15; 2 Greenl. Ev. § 642. The court properly refused to comply with this request.

2. Again, the defendant requested the court to charge that if they found that the plaintiff's name was Robert McIntosh, and not James Doherty, he could not recover. Strangely, the defendant relies upon Boston Type Foundry v. Spooner, 5 Vt. 93, to support this request. The doctrine of this case is that unless no such person as the plaintiff named exists in rerum natura, the defendant must take advantage of it by a plea in abatement or by a plea in bar. It is there clearly stated that the plea of the general issue admits the existence of the plaintiff and his capacity to sue, and cases are cited from Massachusetts and the United States supreme court in support of the doctrine. This request does not go to the length of claiming, on the general issue even, that there is no such person as the plaintiff named, but that the true name was Robert McIntosh. This request, on the case especially relied upon by the...