Haywood v. Kukuchka

Citation55 Wyo. 41,95 P.2d 71
Decision Date30 October 1939
Docket Number2124
PartiesHAYWOOD v. KUKUCHKA
CourtUnited States State Supreme Court of Wyoming

APPEAL from the District Court, Sheridan County; C. D. MURANE Judge.

Action in replevin by Mary P. Haywood, as administratrix of the estate of Mike Banas, deceased, against George Kukuchka to recover possession of an automobile. Judgment for plaintiff and defendant appeals.

Affirmed.

For the appellant, the cause was submitted upon the brief of R. G Diefenderfer and John F. Raper of Sheridan.

The judgment is against the overwhelming weight of the evidence and should be reversed. Hilliard Flume Company v Woods, 1 Wyo. 396; Western Union Telegraph Company v. Monseau, 1 Wyo. 17. Defendant in a replevin may prove title under a general denial. Farm and Cattle Loan Co. v. Faulkner, 34 Wyo. 199, 242 P. 415; Towne v. Sparks, 36 N.W. 375. There is no Wyoming statute voiding a sale of an automobile in any other manner than is prescribed by Sections 72-406, 407, R. S. 1931; Hennessy v. Automobile Ass'n., 282 S.W. 791; Home Insurance Company v. Stubblefield, 287 S.W. 297; Sargent v. Auto Company, 257 P. 23; 52 A. L. R. 701; see annotation 63 A. L. R. 688; Kruse v. Carey, 242 N.W. 873; annotation 94 A. L. R. 948; Gaub v. Mosher, 120 A. 921; Littel v. Brayton, 201 P. 34; Corporation v. Landis Motor Company, 129 S.E. 414; Amick v. State Bank, 204 N.W. 639; Goodman v. Trust Company (Calif.) 218 P. 1078; Briedwell v. Henderson (Ore.) 195 P. 575; Weideman v. Campbell (Ore.) 215 P. 885; Boles v. Stiles (Calif.) 204 P. 848; Selznick v. Automobile Company, 118 A. 553. Property will pass as between parties although the goods remain in the custody of the seller. 35 C. J. 555. This court may render such judgment as the court below should have rendered. Sec. 89-4819, R. S. 1931. The replevin bond stands in the place of the property. Thompson v. Hunt, 19 Wyo. 523; Quinlan v. Jones, 27 Wyo. 410, 198 P. 352; Glenn v. Porter (Ark.) 57 S.W. 1109; Siebeck v. McTierman (Ark.) 125 S.W. 136; Fariss v. Holly (Fla.) 116 So. 763; Cobell v. Floyd (Tex.) 50 S.W. 478; Tripplett v. Hendricks (Tex.) 212 S.W. 754; Brooks v. Taylor (Tex.) 214 S.W. 361.

The cause was submitted for the respondent upon the brief of A. W. Lonabaugh of Sheridan.

It was necessary for defendant to show delivery of the automobile, also to show that the transfer was made in accordance with Section 72-407, R. S. 1931. This court will not interfere by substituting its own view for that of the trial court. Perko v. Rock Springs Comm. Co., 37 Wyo. 98; Montgomery v. Empey, 36 Wyo. 37; Murphy v. Livestock Company, 26 Wyo. 455. The hospital clinical record was competent evidence. Boss v. I. C. R. Co., 221 Ill.App. 504; Adler v. New York L. Ins. Co., 33 F.2d 827; Ribas v. Rever Rubber Company (R. I.) 91 A. 58; Barfield v. South Highlands Infirmary (Ala.) 68 So. 30; Indemnity Company v. Reinhart (Md.) 137 A. 43; Lund v. Olson, 234 N.W. 310; Wright v. Upson, 135 N.E. 209; Clark v. Beacon Oil Company (Mass.) 170 N.E. 836; Bilodeau v. Fitchburg (Mass.) 128 N.E. 872; Claffey v. Fenelon (Mass.) 161 N.E. 616. As to transfer of ownership, see Braham & Company v. Motor Company, 97 Pa.Super. Ct. 19; Bank v. Ludvigsen, Administrator, 8 Wyo. 230. The judgment of the trial court should be affirmed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action in replevin, brought by the plaintiff Mary P. Haywood, as administratrix of the estate of Mike Banas, deceased, against George Kukuchka, to recover the possession of one 1934 Dodge coupe. The case was tried by the court without a jury. Judgment was in favor of the plaintiff, and the defendant has appealed. The main assignment of error, and the only one which we need to discuss, is that the undisputed evidence shows the defendant to be the owner of the automobile in question.

The deceased, Mike Banas, died on May 11, 1937. It is not disputed that he bought the automobile; that he took out the 1937 license therefor, probably in the latter part of 1936, or the early part of 1937; and that he was in possession of the car at the time of his death. These facts made a prima facie case in favor of the plaintiff, and the burden to show the contrary devolved upon defendant. Farm & Cattle Loan Co. v. Faulkner, 34 Wyo. 199, 242 P. 415. The defendant claims that in the spring of 1936, the deceased was under arrest on a charge of rape; that at that time, he borrowed money from the defendant in the sum of about $ 500; that the deceased gave defendant a note or receipt; that the deceased was unable to pay the loan, and in January, 1937, turned the car over to him in payment of the receipt or note.

The defendant introduced testimony that the loan above mentioned was made in the spring of 1936. The witness Ann Kuchera, testifying in favor of the plaintiff, stated that she bought the last car-license for the deceased and that she saw the so-called note above mentioned. She testified:

"It was just before Mike Banas bought his last car license. I saw his note; it was in the envelope with his car papers. When he removed his car papers, the note was there. I brought the car to town, bought the last car license. He gave me a twenty dollar bill. When I returned the papers and car license, he put it back in the envelope which contains the note."

If this testimony is true, then the loan above mentioned, if made, was repaid prior to the time that the deceased bought his car license, and hence the whole theory of defendant falls. Defendant did not introduce the note or receipt in evidence, nor was it shown that it was returned to the deceased after, as is claimed, he turned over the automobile in payment of the note. The fact that plaintiff did not introduce the note in evidence may be accounted for by the fact that the defendant took possession of the car, and probably its contents, after the death of the deceased, and prior to the time that the plaintiff obtained possession of the car. Considering all the facts, we are not prepared to say that the existence of the loan in January, 1937, was so satisfactorily shown as to compel the trial court to accept it as a proven fact.

Dr. Clegg, testifying for the defendant, stated that he was called to see the deceased on the night of May 7, 1937; that he was then unconscious; that he treated him a little; that the deceased then regained consciousness; that, by a drive of 11 miles, he took him to the hospital at Sheridan; that on the way to the hospital he had a talk with the deceased who then asked him to turn the key to the automobile over to the defendant; that the latter owned the car, and had merely loaned it to the deceased; that the deceased gave him the key after they arrived at the hospital, and he afterwards turned it over to the defendant; that, as shown by the hospital records, the deceased did not become unconscious until about 18 hours before he died, which was on May 11, 1937. The hospital records were, we think, contrary to defendant's contention, sufficiently identified. Two sheets were signed by Dr. Clegg, and in both is contained the statement that the deceased, when admitted to the hospital, was unconscious. In one of them he states: "This patient admitted May 7, unconscious, with Cheynne-Stokes respirations, pulse irregular in force and frequency. He did not respond and condition gradually grew worse until he expired May 11, 1937." Notations in other records indicate that the condition of the deceased remained the same as it was when he was admitted to the hospital. We cannot hold, we think, in view of this evidence, attention to which was called by Dr. Clegg himself, that the trial court was not justified, under the rule of falsus in uno, falsus in omnibus, in totally disregarding the testimony of this witness as above mentioned. See Rue v. Merrill, 42 Wyo. 511, 527, 297 P. 379. The contradiction was not merely, we think, on a minor point, as contended by counsel for the defendant. If the deceased was unconscious when Dr. Clegg first saw him, and was unconscious when he arrived at the hospital, after a drive of 11 miles, and continuously thereafter, the inference is not too remote that he was probably in no condition during any of that time to tell of the ownership of his car. Dr. Clegg's testimony could, under the circumstances, be credited, or fully credited, only if the state of unconsciousness of the deceased were minimized. Such minimizing was important for such purpose, but was directly contradicted by the doctor's own records.

Three of the defendant's sons were witnesses in the case. Paul testified to a conversation between his father and the deceased in January, 1937; that defendant asked deceased for the money due him; that deceased stated that he couldn't pay, and turned the automobile over to defendant; that at that time the key to the car was given to the defendant, as well as some papers; that thereafter deceased asked defendant for the use of the car, and that he was refused at three different times. Another son, John, gave an entirely different version of the conversation. He stated: "Mike says he has no money, but he says he will turn this car over to him, and the first time they get together in town, they will have this fixed up"; that deceased turned the "papers to the car" over to the defendant. It does not appear that the proposal to "fix it up" was ever...

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4 cases
  • Hall v. Schoenwetter, 15459
    • United States
    • Connecticut Supreme Court
    • December 31, 1996
    ...(1929) (decedent's possession of certain currency before death established prima facie case of her ownership thereof); Haywood v. Kukuchka, 55 Wyo. 41, 45, 95 P.2d 71 (1939) (decedent's possession of car, along with other indicia of title, established prima [239 Conn. 562] facie case of own......
  • Foley v. Hassey
    • United States
    • Wyoming Supreme Court
    • October 30, 1939
  • Phillip v. State
    • United States
    • Wyoming Supreme Court
    • February 12, 2010
    ...this maxim, see Montez v. State, 527 P.2d 1330, 1332 (Wyo.1974); Parkel, 69 Wyo. at 128, 237 P.2d at 635-636; Haywood v. Kukuchka, 55 Wyo. 41, 46-47, 95 P.2d 71, 72 (Wyo.1939); Rue v. Merrill, 42 Wyo. 511, 525-26, 297 P. 379, 384-85 (Wyo.1931), the concept has been subject to criticism. Add......
  • Beck v. Givens, 2767
    • United States
    • Wyoming Supreme Court
    • April 9, 1957
    ...scientific principles. See generally on the subject 20 Am.Jur., Evidence § 1180; Annotations, 8 A.L.R. 796, 72 A.L.R. 27; Haywood v. Kukuchka, 55 Wyo. 41, 95 P.2d 71. As will be indicated by a search of Evidence, k594, West's American Digest System, the cases on the subject are multitudinou......

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