Greenstein v. Singer

• Decision Date: 31 December 1952
• Docket Number: No. 9296,9296
• Citation: 93 A.2d 306,80 R.I. 141
• Parties: GREENSTEIN v. SINGER. Ex.
• Court: Rhode Island Supreme Court

Page 306

93 A.2d 306

80 R.I. 141

GREENSTEIN v. SINGER.

Ex. No. 9296.

Supreme Court of Rhode Island.

Dec. 31, 1952.

Isidore Kirshenbaum, Providence, for plaintiff.

McKiernan, McElroy & Going and John S. McKiernan, Providence, for defendant.

CAPOTOSTO, Justice.

This action in trespass for trover and conversion was brought to recover moneys allegedly misappropriated by the defendant. A jury in the superior court returned a verdict for the plaintiff in the sum of $4,500. The defendant's motion for a new trial was thereafter heard and denied. The case is before us on her exceptions to the denial of that motion, to the refusal of the trial justice to direct a verdict in her favor, and to certain rulings on evidence.

No question of parties or pleading being raised, the ultimate issue in the case as tried is whether the defendant surreptitiously took and converted to her own use money, claimed by the plaintiff, from a safe deposit box in a certain bank in the city of Providence. The defendant, eldest of five adult childrent, is the daughter of plaintiff and his first wife, hereinafter sometimes called Goldie. At the time of the occurrences in question defendant was living with her parents. For reasons of their own plaintiff and his wife chose to hide substantial sums of money in his store and in their home. Whatever money plaintiff kept in the store, although the subject of considerable evidence, is not involved in this case.

Goldie died in February 1948 while on a visit in Sharon, Massachusetts, at which time $1,450 was found in her clothing. That money was turned over to plaintiff He testified that after the funeral he and defendant, upon searching the house for money which he knew was hidden somewhere therein, discovered $4,000 secreted in an old cabinet radio. The defendant's testimony on this point was that she did not participate in any such search; that she knew nothing about the money which her father claimed to have found in the house; and that it was impossible to hide the money in the radio as described by him.

The plaintiff further testified that shortly after finding the $4,000, defendant asked him what he was going to do with that and the other $1,450 then in his possession. His answer was that he was thinking of buying a $1,000 bond for each of his five children; that she advised him to the contrary and suggested that he put the money in a safe deposit box in a bank where 'nobody knows and any time you want to get some money out, you can get it without red tape.' Adopting her suggestion, he authorized her to rent such a box for him and she did so but took it in their joint names, saying to him: 'I will get another key, Pa, in case you lose your key. You are a sick man.'

The amount of money actually placed in the box was the subject of conflicting and irreconcilable testimony. The plaintiff testified that he had $5,000 with him when he and his daughter went to the bank; that at the bank he counted the money in her presence; and that, after defendant also had counted it for verification, the $5,000 and some jewelry, including a ring belonging to her, were placed in the safe deposit box. On the other hand defendant's testimony in substance was that only $1,450, certain jewelry of plaintiff's deceased wife and defendant's ring were placed in the box.

Between February 25, 1948 and September 26, 1949 defendant, without plaintiff's knowledge, went to the bank on five different occasions for the purpose, according to her, of taking out and returning her ring, and also to make certain withdrawals, in the total amount of $750, out of the money in the safe deposit box. She also testified that she took such sum upon the advice of a relative who said it belonged to her.

In June 1949 plaintiff married again and went to live with his second wife. Because of a disagreement with his daughter, apparently as a result of that marriage, he became concerned over the money in the safe deposit box and upon examination thereof he discovered that it contained only $500. Shortly thereafter he telephoned to defendant and asked her: 'Where is the $4,500?' Her reply, as testified to by him but denied by her, was: 'You don't need the money. You are a sick man and you will die and she [meaning the second wife] will get the money.'

Our statement of the testimony is but a sketchy outline of a mass of conflicting evidence replete with references to family conditions and other matters not of material importance in determining whether as...