Fadden v. McKtnnev

• Decision Date: 13 January 1914
• Citation: 87 Vt. 316,89 A. 351
• Parties: FADDEN v. MCKTNNEV et al.
• Court: Vermont Supreme Court

89 A. 351

87 Vt. 316

FADDEN

v. MCKTNNEV et al.

Supreme Court of Vermont. Franklin.

Jan. 13, 1914.

[Copyrighted material omitted.]

Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by R. W. Fadden against S. E. MeKinney and others. Judgment for plaintiff, and defendants except. Reversed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Elmer Johnson, of St. Albans, for plaintiff.

C G. Austin & Sons, of St. Albans, for defendants.

TAYLOR, J. This is an action of trespass for breaking and entering the plaintiff's close, situated on Aldis street, in the city of St. Albans, to which a count in trover is joined for taking and carrying away certain household goods claimed to be owned by the plaintiff. The plea was not guilty.

The first question presented arose below on the motion of defendant S. E. McKinney for a directed verdict, on the ground in substance that there was no evidence to support a verdict against him. On this question the transcript of the testimony is referred to and made controlling.

The evidence, viewed in the light most favorable to the plaintiff, in any way material to the disposition of this question, is as follows: The plaintiff was a married man and for several years prior to the date of the alleged trespass had lived on the premises in question with his wife and children. Some time in 1908 difficulty arose between the plaintiff and his wife which culminated in a petition for divorce brought by the wife in June of that year. At that time, and ever since the family had lived on the premises, the title thereto was in the plaintiff. Shortly after the petition for divorce was brought, a reconciliation was effected and an agreement entered into providing, among other things, that the plaintiff should convey the premises to his wife. Pursuant to this agreement the premises were conveyed through a third person to the wife, and the divorce proceedings were discontinued. The plaintiff and his wife continued to occupy the premises as their home until the day of the alleged trespass. Five of the plaintiff's six children were living at home with their father and mother in the summer of 1912. The defendant, Vernon Fadden, a son, and Myrl MeKinney, wife of S. E. MeKinney, a daughter, had reached their majority. Prior to July 27, 1912, trouble again broke out between the plaintiff and his wife. The plaintiff attributed the difficulty to Mr. and Mrs. MeKinney and his son Vernon, who were then living in the family paying board. On that day plaintiff notified Mr. and Mrs. MeKinney and Vernon to leave the house and find board elsewhere. Mrs. Fadden had brought a new petition for divorce which had been served on the plaintiff on July 24, 1912, in which the plaintiff was restrained from interfering with the wife's possession of the household effects upon the premises in question. Mr. and Mrs. MeKinney and Vernon did not act at once upon the notice to leave the premises, and steps were taken which resulted in a hearing before the judge, who signed the restraining order in the divorce proceeding on August 8th and 9th, among other things on a motion to modify the injunction. At the conclusion of the hearing the judge stated orally the substance of his decision, which, so far as material to the questions before us, was to the effect that conditions should remain substantially as they were pending the petition, except that the older children, Vernon J., Myrl, and her husband, S. E. MeKinney, should immediately procure board and accommodations elsewhere; that the plaintiff have the exclusive use of certain portions of the dwelling house and be prohibited from occupying other portions thereof; that. Mrs. Fadden should have the right to occupy the portions of the dwelling house not set apart for the plaintiff, or to go elsewhere at her option; and that she should not remove, or permit to be removed, from the premises any of the household furniture or other personal effects situate thereon, except her own clothing and that of the children. Defendant MeKinney was present at the hearing and heard the decision announced. The written order signed by the judge was received and filed in the clerk's office August 12, 1912, after the trespass complained of. The day following this hearing, Mrs. MeKinney, accompanied by her mother, found and rented a tenement on Messenger street, in another part of the city, and on the following day engaged defendant Charron, who was a truckman, to move her and her husband's furniture then in the house on Aldis street to this tenement. It did not from direct evidence appear that Mrs. Fadden was party to the original renting of this tenement nor that she then intended to leave the Aldis street house; but it did appear that the next day she had reached this decision and made an arrangement with Mrs. MeKinney to take the tenement and furnish room and board to Mr. and Mrs. MeKinney.

On the day of the trespass complained of, defendant Charron, pursuant to his talk of the day before with Mrs. MeKinney, sent two of his servants, Albert Olds and Merton E. Lovely, the remaining defendants, with two large truck teams to move the goods. Defendant Charron was not present and took no part in the actual moving of the goods. Olds and Lovely, assisted by Mrs. Fadden, Mrs. McKinney, and Vernon Fadden, without the consent and against the protest of the plaintiff, loaded the furniture onto the teams, which were backed across the lawn of the premises in question, and moved it to the Messenger street tenement, leaving the house practically stripped of its furnishings. The furniture and personal effects of the defendant McKinney were loaded and moved at the same time with that claimed by the plaintiff. The trespass complained of was the entry of the premises to remove the household goods and personal effects of, or claimed by, the plaintiff.

The plaintiff claimed that Mrs. McKinney employed Charron to move all the furniture, and that in doing so she was acting for her husband. There was no direct evidence to connect Mr. McKinney with the transaction, and he was not present at the time of the moving and, so far as appeared, had nothing to do with it further than to give Mrs. McKinney money to pay for moving their personal effects. Mr. McKinney was employed by the Central Vermont Railway Company and left the house in the morning before the work of moving was begun and did not return. It appeared that Mrs. McKinney had told her husband where and when they were to move, and that she had employed Charron to move their goods. There was no direct evidence to support the plaintiff's claim that Mrs. McKinney employed Charron to move the goods in question. It appeared, however, that Charron's men came with two teams, while one would have been sufficient to move the McKinneys' goods.

Mrs. Fadden paid Charron's men for moving the goods, except what was contributed by Mr. McKinney for moving his own. Mrs. Fadden took the minor children with her to the Messenger street tenement and at once became the head of the family there, paying the rent, and Mr. and Mrs. McKinney and Vernon continued members of her family as boarders.

Was there evidence to go to the jury so far as defendant S. E. McKinney was concerned? We think not. Up to the time he and his wife were ordered to leave the premises, he was rightfully there as a roomer and boarder. After receiving such notice, Mrs. McKinney procured a place to which to move their personal effects. It was not claimed that he did not have a right to remove the goods belonging to himself and his wife in the way they were removed; nor was it claimed that he personally employed Charron and his men to remove any goods claimed by the plaintiff or personally had anything to do with their removal. There was no evidence tending to show that he counseled and procured the entry by Charron's servants to remove the plaintiff's goods.

If the circumstances afforded a just basis for the inference that Mrs. McKinney procured such an entry, it would violate the rule against basing one presumption upon another to infer therefrom that what she did in that regard was counseled and advised by her husband. No inference can legitimately be based upon a fact, the existence of which itself rests upon a prior inference. 2 Cham. Mod. Ev. § 1029; Doolittle v. Holton, 26 Vt. 588. The only presumptions of fact which the law recognizes are immediate inferences from the facts proved. Comstock's Adm'r v. Jacobs, 84 Vt. 282, 78 Atl. 1017, Ann. Cas. 1913A, 679. Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed. Cunard S. S. Co. v. Kelley, 126 Fed. 610, 61 C. C. A. 532.

A presumption of fact is an argument which infers a fact otherwise doubtful from a fact which is proved; hence, to be valid, it must rest on a fact in proof. So far as appeared, whatever Mrs. McKinney may have done in that regard was without his knowledge or consent. Moreover, he would not be chargeable for the tort of Mrs. McKinney, if she were guilty, for, so far as appeared, her acts in that behalf were committed without his authority or direction.

By P. S. 3042, the husband is relieved from the common-law liability for torts of his wife unless committed by his authority or direction. Story and Wife v. Downey and Wife, 62 Vt. 243, 20 Atl. 321. The very most the plaintiff could claim from the evidence would be knowledge on the husband's part that the wife had employed Charron to move the plaintiff's goods, which alone clearly does not make the husband liable. Besides, to make the cause of action complete against the husband for the tort of the wife, it is necessary to allege and prove that it was committed by his authority and direction, which was not attempted in this case. Story and Wife v. Downey and Wife, supra.

It is now the well-settled rule in this state that something more than a mere scintilla of...