Flax v. Monticello Realty Co

• Decision Date: 11 September 1946
• Citation: 185 Va. 474,39 S.E.2d 308
• Parties: FLAX . v. MONTICELLO REALTY CO.
• Court: Virginia Supreme Court

39 S.E.2d 308

185 Va. 474

FLAX .

v.MONTICELLO REALTY CO.

Supreme Court of Appeals of Virginia.

Sept. 11, 1946.

Error to Law and Chancery Court of City of Norfolk; O. L. Shackleford, Judge.

Action in detinue by Jake Flax against Monticello Realty Company, etc., to recover a diamond brooch or its alternate ralue. To review a judgment setting aside a verdict for plaintiff, plaintiff brings error.

Affirmed.

Before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON and SPRATLEY, JJ.

Charles L. Kaufman and Hamilton Plack, both of Norfolk, for plaintiff in error.

William L. Parker, of Norfolk, for defendant in error.

BROWNING, Justice.

This is an action in detinue to recover one pear-shaped diamond brooch or its alternate value of $3,750. The parties will be referred to in their proper names or as they were related in the trial court, that is, plaintiff and defendant.

The plaintiff, Jake Flax, came to Norfolk, Virginia, to testify for his friend, W. S. Wilder, who had a tax claim case pending in the United States District Court for the Eastern District of Virginia. Wilder and his witnesses were operatives or interested in the moving picture industry.

Flax occupied over night a room in the Monticello Hotel of which Col. Charles H. Consolvo was the managing head. Flax left his room on the morning of May 31 to attend the session of court and returned to the hotel in the afternoon, being the guest, with others, of Mr. Wilder for dinner served in the latter's suite. Before repairing to the suite he went to his room for the purpose of checking out for the boat leaving that evening. He noticed on the dresser in his room something wrapped in tissue paper. He took it and an examination disclosed the presence of the brooch in question. Flax, knowing nothing of its value, supposed it to be what is known as a piece of costume jewelry which is not of substantial intrinsic worth. Upon entering the room where dinner was about to be served, he showed the brooch to the assembled company. Mr. Wilder, having previously been in the jewelry business, perceived that it was an article out of the ordinary and declared that he believed it was genuine. To make sure, he suggested calling an expert from a nearby jewelry establishment to appraise the thing. The man called could not come so that Flax and Mr. Wilder left the hotel apartment for the moment and went across to the jewelry store. There the man, who was an expert appraiser, told them that its value was between $3,750 and $4,000. Thus, the story takes on the flavor of Dumas' character of fabulous worth, the Count of Monte Cristo, which augmented the interest and curiosity of the assembled company.

The question arose what was to be done with the bejeweled ornament. Mr. Wildersuggested that Col. Consolvo be called and acquainted with the matter. He came, and Mr. Flax showed it to him, saying, "Is finding keeping?" which the Colonel negatived, saying, "I wouldn't say so. I don't quite understand what you are trying to convey to me." Flax then told him how he had come by the piece of jewelry. The suggestion of Col. Consolvo was that the only thing to be done was to place it in the custody of the hotel until it was called for by the true owner. He affirmed that it did not belong to Flax or the hotel. This disposition was assented to.

Here we come to a place in the story in which there is a conflict of testimony or a difference in understanding. The understanding of Flax and Mr. Wilder was that if the jewel was not called for within a reasonable time, after investigation, it was to be returned to Mr. Flax. Neither of these gentlemen testified to this in positive terms. It was simply their understanding. Col. Consolvo testified very positively that there was no such understanding and that there were no words or terms used from which such understanding could be deduced. Some of the other gentlemen who were present testified that such disposition of the thing was agreed to by Col. Consolvo. We do not think, however, that this is of any decisive moment because, as we shall presently see, Col. Consolvo under our view had no right or authority to make such agreement.

The jury rendered a verdict for the plaintiff, which was set aside by the court as contrary to the law and evidence, upon the motion of the defendant.

Mr. Flax called at the hotel several times to ascertain if the owner of the brooch had made claim for it. In the absence of such claim, he asserted a right to it, which was resented by the hotel, hence the suit.

Upon investigation, the hotel ascertained the name of the occupant of the room just prior to the occupancy of Flax, but up to that time he had not been located. Investigation revealed the fact that the maid, who was employed by the hotel, upon dismantling the bed, thinking that Mr. Flax was about to check out, found the brooch wrapped in tissue paper, in the crevice of the margin of the mattress. In accordance with the hotel instructions and custom, as the present occupant had not actually departed, she placed the article on the bureau, under the supposition that it belonged to him. Then occurred what we have described as having transpired.

Perhaps a variety of theories might be indulged as to why the article was concealed where it was and why it was overlooked and why no claim for it was subsequently made. This would take us into a realm of speculation, perhaps fruitful, perhaps not so. At least, its avoidance seems to be proper. The learned judge of the trial court rendered an opinion which is made a part of the record. It is brief and to the point, and we quote it in full:

"It is contrary to human experience that the owner of a...