Geldback Transport, Inc. v. Delay
| Decision Date | 14 July 1969 |
| Docket Number | No. 53970,No. 1,53970,1 |
| Citation | 443 S.W.2d 120 |
| Parties | GELDBACK TRANSPORT, INC., Respondent, v. Dallas DELAY, Appellant, and Grassham Brothers Chevrolet Company, Respondent |
| Court | Missouri Supreme Court |
Edwards & Robison, Jack O. Edwards, Sikeston, for defendant-respondent.
Robert B. Baker, Ellington, for appellant.
LAURANCE M. HYDE, Special Commissioner.
This action was commenced as replevin against defendant Delay, hereinafter called appellant, and defendant Grassham Brothers Chevrolet Co., hereinafter called Grassham, for possession of an International tractor. Plaintiff later dismissed as to appellant and appellant's appeal from this order of dismissal was dismissed. Therefore, this appeal involves only appellant and Grassham. Appellant had filed a cross-claim against Grassham for $12,500.00 actual damages and $12,500.00 punitive damages which the court dismissed. Appellant has appealed from this judgment of dismissal and we affirm for the reasons hereinafter stated.
The tractor involved was missed from the premises of plaintiff in Kirkwood and was found by the State Highway Patrol disassembled. The engine, frame, tires and accessories were found at appellant's salvage yard in Carter County; other parts were found nearby in Ripley County. All parts of the tractor found by the officers were taken under a search warrant and left for storage with Grassham. The serial number on the engine had been obliterated. Plaintiff's replevin petition alleged ownership of the tractor and stated appellant was claiming some right to it of an unknown nature. It further stated the tractor was in the possession of Grassham 'who have been notified of the conflicting claims to possession' of plaintiff and appellant. Appellant's cross-claim against Grassham alleged appellant 'had lawful possession of the * * * property and is lawfully entitled to the possession of it'; and that Grassham 'without lawful authority, took and continues to withhold (it) from the lawful possession' of appellant.
Thus it appears that appellant did not claim ownership and interrogatories were filed by plaintiff seeking to determine the nature of appellant's claim, which appellant did not answer. Thereafter, Grassham filed interrogatories asking among other questions where and when appellant obtained possession of the property, the name of the person from whom he obtained possession and how he obtained possession 'whether by purchase, trade or gift' and manner of payment. Appellant refused to answer 'on the ground that his answer might tend to incriminate him.' On Grassham's motion the court dismissed appellant's cross-claim.
Appellant relies on recent United States Supreme Court cases which he says require that no penalty be imposed for a valid claim of privileges guaranteed by the fifth amendment to the United States Constitution and enforceable on the states through the fourteenth amendment, citing Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. None of these are cases where the party claiming the fifth amendment privilege was seeking affirmative relief for himself against another party. In Malloy, petitioner was committed for contempt for refusal to answer questions in a state gambling enquiry. In Spevack, the proceeding in which petitioner refused to testify was one to discipline him as a member of the Bar for professional misconduct. In Garrity, petitioners (police officers) were convicted of conspiracy to obstruct justice on their testimony in a state investigation of fixing traffic tickets in which their choice was between self-incrimination and job forfeiture. None of these are applicable to the situation in this case. Here appellant on his cross-claim is in the position of a plaintiff, having the burden of proof, and could only prevail by proving ownership or right of possession under a lien or other valid claim. He could not recover anything without disclosing the basis for his claim and making proof of it. Therefore, Grassham had a right to know what it was under Civil Rule 56.01, V.A.M.R., or have his action dismissed under Civil Rule 61.01(d).
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