Giffin v. Petree

• Decision Date: 11 January 1932
• Parties: ZEPHA I. GIFFIN, DEFENDANT IN ERROR, v. FRANK PETREE, TRUSTEE, ETC., PLAINTIFF IN ERROR
• Court: Kansas Court of Appeals

46 S.W.2d 609

226 Mo.App. 718

ZEPHA I. GIFFIN, DEFENDANT IN ERROR, v. FRANK PETREE, TRUSTEE, ETC., PLAINTIFF IN ERROR

Court of Appeals of Missouri, Kansas City

January 11, 1932

Error to the Circuit Court of Andrew County.--Hon. Guy B. Park Judge.

REVERSED AND REMANDED.

Reversed and remanded.

R. B Bridgeman and A. M. Tibbels for plaintiff in error.

Horace Merritt for defendant in error.

TRIMBLE P. J. Bland and Arnold, JJ., concur in the result, but in a separate opinion by Bland, J.

OPINION

TRIMBLE, P. J.

This is an action seeking compensatory and punitive damages for an alleged conversion of personal property by defendant Frank Petree, trustee in bankruptcy of John F. Iden, a bankrupt. The jury returned a verdict of $ 2000 compensatory, and $ 1500 punitive damages. Whereupon defendant sued out, in this court, a writ of error.

At the outset there seems to have been at least two other defendants, but plaintiff dismissed as to one and the other was let out in some unknown way, for Petree is the only defendant who now answers, and the only one against whom the verdict is returned. For convenience, we designate the parties "plaintiff" and "defendant" as they were at the trial in the Circuit Court.

To properly understand the circumstances of the alleged conversion, it is necessary to set out, as the background of the picture presented by the taking of the property, the following facts:

John F. Iden is the father of the plaintiff, and for many years prior to his bankruptcy, and before the institution of this suit, owned two tracts of land on the shores of "Big Lake" in Holt county, Missouri, and on one of these he maintained a summer resort consisting of a large frame dwelling, used and known as a hotel, and a number of cottages. The hotel was equipped with furniture and other articles needed in the operation thereof, and the cottages were furnished so as to enable "resorters" to rent them for the summer season and do light housekeeping. Mr. Iden also operated, in connection with the hotel, a small general store stocked with groceries and other articles. He finally became heavily in debt.

On December 15, 1921, he conveyed to his daughter (this plaintiff) the tract containing the hotel and resort and at the same time he also turned over or conveyed to her the furniture and other property contained in the hotel and cottages and all property owned and used by him in the operation of said hotel and resort.

On July 3, 1922, Mr. Iden conveyed the other tract of land above mentioned to his said daughter, the plaintiff. The conveyance of this property was also without consideration. The lands were heavily incumbered, but the personal property was free.

On October 8, 1923, Iden filed a voluntary petition in bankruptcy in which he listed secured debts to the amount of $ 57,000 and unsecured debts amounting to about $ 30,000. The assets, over and above incumbrances, were listed as amounting to $ 3,900.

Defendant, Petree, was duly appointed trustee in bankruptcy of the bankrupt estate of John F. Iden, and suits were instituted to set aside the deeds from Iden to plaintiff, and during the somewhat extended period of this litigation, Mr. Iden continued in the possession of the property which he had turned over or conveyed to his daughter. At length, a decree was obtained from the United States District Court setting aside the deeds as being without consideration, fraudulent and void as to creditors.

The trustee obtained the proper order from said court directing the bankrupt, Iden, to surrender possession of the real estate to him. But Iden refused to obey until after the court had adjudged him guilty of contempt in not obeying, and, under said contempt adjudication, Iden had been taken into custody by the United States marshal.

At the time Iden was ordered to deliver possession of the real estate to defendant trustee, the referee in bankruptcy also made an order requiring Iden to turn over to said defendant trustee the personal property he had theretofore given or transferred to his daughter.

The "turn-over" order was made on May 24, 1926.

On June 9, 1926, Iden, the bankrupt, filed a "Petition for Review of Referee's Order to Turn Over Personalty." This petition the referee denied on the 14th day of June, 1926, as having "no merit," and also because it was filed more than ten days after the "turnover" order was made, and no extension of time for filing said petition for review had been granted.

On the same day the bankrupt's petition for review was filed, to-wit, June 9, 1926, the plaintiff filed her "Application in the nature of an Interplea," praying the referee to set aside said "turn-over" order and "to compel the trustee to obtain possession of said property from petitioner by due process of law," etc.

On the 15th of June, 1926, the plaintiff's petition to set aside the "turn-over order" was denied by the referee without a hearing thereon. And on the 30th of June, 1926, the petition of the bankrupt "to certify to the judge the exceptions of the bankrupt to the order of the referee denying review of turn-over order for personal property heretofore made" was denied.

The "turn-over order" was delivered to defendant, and on July 24, 1926, being the same day that Iden, the bankrupt, in the custody of the United States marshal, delivered possession of the real estate to the defendant trustee, the latter also took possession of the personal property involved herein, under said "turn-over" order. At the time of such taking, said defendant trustee made an inventory and listed the same and took possession of it as the property of the bankrupt estate of John F. Iden.

Thereafter, on some date not shown in the record, but presumably about the 22nd of September, 1927, plaintiff brought this action in the state court against the defendant as trustee in bankruptcy of the bankrupt estate of John F. Iden, to recover, as damages, the value of the personal property charged to have been converted by the trustee, together with punitive damages for the alleged "unlawful, wrongful and malicious" taking of the same. As will more fully appear later herein, the petition seeks to recover the value of the whole property taken possession of by the trustee, but the plaintiff's evidence tends to show that this includes not only property conveyed or given to her by her father, the bankrupt, but also some property not listed or taken by defendant as well as some articles which she claims to have owned prior to the conveyance to her by her father and some that she claimed to have acquired after the adjudication of her father's bankruptcy.

It is conceded and indeed it was adjudicated by the United States Court that the conveyances of the real estate made by Mr. Iden to his daughter were voluntary and without consideration; and Mr. Iden, who was plaintiff's witness, testified that he turned the personal property and business over to plaintiff in December, 1921; that the hotel and cottages were fully equipped at that time and that his conveyance of the personal property to his daughter was voluntary and wholly without consideration, or, as he says, when asked that question, "I gave it to her."

In her petition, plaintiff stated the value of all the property sued for, i. e., the property which Mr. Iden conveyed or turned over and gave to his daughter and that which she claimed to have owned individually prior to the bankruptcy and that which she claims to have acquired after the bankruptcy, to be $ 3500; and in her deposition (taken in Wyoming where she lived at least all the time from and after the year 1924, and in which deposition she stated that, after her marriage in 1920, she lived at "Big Lake" "just during the summer time" of the years 1921, 1922, 1923 and 1924), she testified that the fair value of all the property was $ 3500. She also stated in said deposition that during the summers mentioned, her father was in charge of the property as her agent; that she personally conducted "this business" during these years of 1920, 1921, 1922, 1923 and 1924, and when she left Missouri, she left the property she claimed belonged to her, "right at the hotel there" and in the charge of her father as her agent.

She also testified in her deposition that she acquired "some of this property," prior to her marriage, from her mother; that she acquired the balance of it "thru my conduct of the business;" that she got some of the property, other than the above, in another way--"My father, probably while he ran the business as my agent, acquired some small amount of it." When asked, "Did some of this property belong to anyone other than you?" she answered, "Some of it belonged to my mother."

Her mother also testified, as a witness for plaintiff, that she owned a part of the property, and that its reasonable value would be about $ 1000. But she mentioned it in a very general way and did not enumerate definitely any more than a bedroom suite, two feather beds, and "well a few other things, I think some silverware I had and some dishes and I had quite a few presents that had been given to me and pillows;" that Mr. Iden paid "for part of it, I presume." "I don't know whether he helped pay for the bedroom suite or not that I had, but I presume he did." She also said she owned "some spoons that was given to me from different ones." She testified that the bedroom suite cost her "about $ 50;" that the silverware was worth $ 8 or $ 10; that her two beds were worth $ 25 apiece and the two pillows about $ 5 apiece, in the aggregate about $ 120; but there was no more definite enumeration than the above and no enumeration or valuation of any other property to make up the remainder of the $ 1000 valuation placed by her on the property she...