Foster v. Fidelity Safe Deposite Company

• Decision Date: 02 March 1915
• Citation: 174 S.W. 376,264 Mo. 89
• Parties: A. W. FOSTER v. FIDELITY SAFE DEPOSIT COMPANY, Appellant
• Court: Missouri Supreme Court

174 S.W. 376

264 Mo. 89

A. W. FOSTER v. FIDELITY SAFE DEPOSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Jackson Circuit Court. -- Hon. John I. Williamson Judge.

Reversed.

Bowersock Hall & Hook and Robert B. Fizzell for appellant.

(1) The envelope containing the money in question could not have been lost so as to constitute the plaintiff the finder thereof because it was discovered upon a desk in defendant's coupon room where it had been placed by a preceding occupant. Hoagland v. Amusement Co., 170 Mo. 342; Loucks v. Gallogly, 23 N.Y.S. 126; McAvoy v. Medina, 93 Mass. 548; Lawrence v. State, 1 Humph. (Tenn.) 228; Kincaid v. Eaton, 98 Mass. 139; Haymaker v. Blanchard, 90 Pa. St. 377, 35 Am. Rep. 664; Deadrick v. Oulds, 86 Tenn. 14; Bank v. Pleasants, 6 Wharton (Pa.), 375; 19 Cyc. 539; 19 Am. & Eng. Ency. Law (2 Ed.), p. 597. (2) A safe deposit company is entitled to the custody of all valuables left on its premises by a customer regardless of whether such goods are discovered by an employee of such company or by a third party. The nature of the business of a safe deposit company, the supervision it exercises over its premises, its intent to exercise possession and control of all valuables left thereon, and the interest of the company's depositors make it imperative that the company be made the custodian of such valuables. If it be held that property left on the premises of a safe deposit company is lost, then the finder is entitled thereto as against the company, even though such finder be an employee. Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Haymaker v. Blanchard, 90 Pa. St. 377, 35 Am. Rep. 664; Tatum v. Sharpless, 6 Phila. (Pa.) 18. Accordingly, such finder could not turn over the property to the company to hold for the true owner, but must at once begin to advertise said property as a step toward making his title complete and divesting entirely the ownership of the loser. R. S. 1909, secs. 8268-8273.

Garnett & Garnett for respondent.

(1) The law is well settled and the rule is universal that the finder of an article of which the owner is unknown has a valid title to it against all the world except the true owner, and that the place where, or the premises upon which, the article is found constitutes no exception to the rule. The defendant does not and cannot controvert this proposition. 19 Am. & Eng. Ency. Law (2 Ed.), 581; Danielson v. Roberts, 44 Ore. 108; Weeks v. Hackett, 104 Me. 264; Kuykendall v. Fisher, 61 W.Va. 87; Bowen v. Sullivan, 62 Ind. 281; Hamaker v. Blanchard, 90 Pa. St. 377; Durfee v. Jones, 11 R. I. 588; Tancil v. Seaton, 28 Gratt. 601. (2) While conceding the foregoing proposition, defendant contends that the "money was not lost so as to constitute plaintiff the finder thereof" and cites cases attempting to define the word "lost," wherein a different question was before the court, than the one at bar. Now "lost" is a relative term. An article may be lost in one sense and not in another. In a controversy between the finder and a third party, if a definition should be attempted it would be that "an article is lost when the owner thereof is unknown." We all know where the money is in this case. It is the owner who can't be found. He is lost. Note the distinction in the cases cited by appellant and in the following cases: Tatum v. Sharpless, 6 Phil. 18; Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424; and the cases supra. The controlling element in cases like the one at bar is the fact that the owner is unknown. An obligation rests upon the person coming into possession of property when the owner is unknown. He is in duty bound to keep possession and make every effort to find the owner. This duty is recognized not only by the rules of common law, but enforced by the statutes of this State, which provides that the person finding any money, etc., "of the value of ten dollars or more the owner of which is unknown," shall make affidavit "that the owner is unknown to him." If in compliance with the statutes he advertises the property "and if no owner prove the property within one year after such publication, the same shall vest in the finder." "Lost and Unclaimed Property." Chap. 75, R. S. 1909; Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424; Tatum v. Sharpless, 6 Phil. 18; Danielson v. Roberts, 44 Ore. 108; 2 Schouler Per. Prop., secs. 5 and 8 (4) The place in which an article is found may or may not be a material fact to be considered in determining whether or not the article was lost. Simply a question of evidence. 19 Am. & Eng. Ency. Law, 581. The place of finding is simply to be considered with all the other facts and circumstances in determining whether the article was lost or not. (5) No declarations of law were asked or given and no special finding of facts requested or made. The court after considering the probative force of the place where the money was found together with the other facts and circumstances in evidence, found the issues in favor of the plaintiff. "The court in trying issues of fact sits as a jury and gives a general verdict; and the only way in which its errors can be corrected, if it decides the law wrongfully, or makes a misapplication of the law to the facts, is to ask declarations of law or instructions, in order that we may see on what theory the court proceeded. To attemtp to review this case would be simply giving our opinion upon the weight of evidence, when no point of law was raised or saved in the trial court. This we cannot do." Weitandy v. Lemuel, 43 Mo. 322; Miller v. Bremke, 83 Mo. 163; Bank v. Tract. Co., 179 Mo. 648; Bethune v. Railroad, 139 Mo. 574; Wischmeyer v. Richardson, 153 Mo. 556. (6) "When the finder of a lost article has delivered it to a third person, to be kept for the owner, or for the finder in case the owner does not claim it, the finder, on refusal of the bailee to return the article, may recover it, if no claim has in the meantime been made by the true owner." 19 Am. & Eng. Ency. Law (2 Ed.), 580; Bridges v. Hawkesworth, 7 Enc. L. & Eq. 424; Bowen v. Sullivan, 62 Ind. 281; Tancil v. Seaton, 28 Gratt. 607.

OPINION

BOND, J.

This case comes to this court on the dissent of one of the Judges of the Kansas City Court of Appeals to the decision of the majority of said court, and a request that it be certified here as being in conflict with two of our decisions. The facts and conclusions of law applicable to them are clearly and accurately stated in the following extracts from the decision of Judge Ellison, speaking for the Kansas City Court of Appeals:

"Defendant is a safe deposit company. It maintains individual safes or compartments which it rents to customers for the safe-keeping of money and other valuable articles. Each of these contains a box which may be withdrawn and in which the customer places his money, papers or other valuable articles. It requires two keys to open one of these safes, one carried by the customer and the other by the attendant in charge. Its place of business is on the same floor and in practically the same room occupied by a banking institution known as the Fidelity Trust Company; it being separated therefrom by a steel fence. A customer enters from the street through the bank, thence through a steel gate operated by an attendant thence into a vault through another gate opened by an attendant. Here he and the attendant open his compartment and he takes out his box and goes to a small private room containing a desk and chair. On the desk are some envelopes, blotters and a pair of scissors. He is admitted into this by an attendant, and when he leaves, the door closes and locks automatically; whereupon the attendant unlocks it and makes the room ready for the next occupant.

"Plaintiff had a compartment rented of defendant, and on the afternoon of April 13, 1906, he took his box therefrom in the usual way, was admitted into one of these private rooms by the attendant, where he examined some papers in his box, and as he was about to leave the room he noticed an envelope lying on the corner of the desk 'that seemed to be a little puffy.' He looked into it and found it contained $ 180 in bills. Neither the envelope nor the money had any name or mark of identification. He took his box back to the vault, and supposing the money belonged to some of defendant's customers, handed it over to one of its officers to find the owner.

"Defendant keeps a record of the name of each customer and the day he takes his box from the vault, and it has written to each customer who took out his box on the day plaintiff discovered the money, and it has made diligent search for the rightful owner, but up to the time of the trial (30th November, 1910) had not found him. After a time plaintiff demanded a return of the money, and defendant refusing to deliver it, this action followed, in which plaintiff had judgment.

"Neither plaintiff nor defendant claims to be the owner of the money. Plaintiff makes no pretence that the money was intentionally abandoned by the owner, and if he should be successful in this action, he must institute certain proceedings prescribed by sections 8268-8273, Revised Statutes 1909 concerning lost property, whereupon, if no owner appears by the end of a year, he would become the owner by force of the law. The question for decision, therefore, is not who owns the money, but which of the parties is entitled to the possession of it; or, better stated, which is the proper custodian. Plaintiff, to sustain himself, must show that he found money which was lost. Property in the possession of another cannot be found, in the sense of the law of lost property, for the reason that it is not lost. Even if discovered in possession of the thief who stole it, the discoverer has not found it, for...