Hunt v. Garrett

• Decision Date: 04 April 1925
• Docket Number: (No. 11108.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 275 S.W. 96
• Parties: HUNT v. GARRETT.
• Court: Texas Court of Appeals

Page 96

275 S.W. 96

HUNT v. GARRETT.

(No. 11108.)^*

Court of Civil Appeals of Texas. Fort Worth.

April 4, 1925.

Rehearing Denied June 6, 1925.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by Rufus S. Garrett, as administrator of the Estate of G. W. Hunt, deceased, on two causes of action against W. W. Hunt. From a judgment for plaintiff on the first cause of action and for defendant on the other, defendant appeals; plaintiff assigning cross-errors. Judgment on first cause of action reversed, and cause remanded for new trial, and judgment on second cause of action affirmed.

Ocie Speer, of Fort Worth, for appellant.

Flournoy & Smith and W. W. Blume, all of Fort Worth, for appellee.

CONNER, C. J.

Rufus S. Garrett, administrator of the estate of G. W. Hunt, deceased, instituted this suit against W. W. Hunt in the district court of Tarrant county to recover the possession of certain securities and written evidences of debt, specified in his petition, of the alleged value of $30,000.

The petition alleged that as administrator he was entitled to the possession and control of the securities and obligations described, and that the defendant had no right or interest therein whatsoever except as a legatee under the will of said G. W. Hunt, deceased, to the extent of $1,000, which was subject to the right and control of the plaintiff. The plaintiff alleged —

"that upon the death of said G. W. Hunt, defendant. W. W. Hunt, wrongfully seized and took possession of all and singular the said personal property, fraudulently claiming the same and the title and possession thereof, as against the legal representative of the estate of said G. W. Hunt, deceased, and his devisees, and is attempting to appropriate and convert the same to his own use in fraud of the rights of those legally entitled to same as aforesaid; that at the time of his death as aforesaid the said G. W. Hunt was the owner and in possession of a certain other promissory note for the principal sum of $3,000, dated, to wit, on or about September 1, 1922, signed by defendant, W. W. Hunt, and payable to said G. W. Hunt on demand, bearing interest from date at the rate of 8 per cent. per annum, and secured by certain shares of the capital stock and certificate therefor attached of Fort Worth Seed Company, a corporation domiciled in said county of Tarrant, the said stock being of a value equal to the obligation of said promissory note with interest accrued and to accrue thereon; that on the death of said G. W. Hunt defendant, W. W. Hunt, wrongfully and fraudulently obtained possession of said note and evidence of his said indebtedness and the said security therefor, and wrongfully and fraudulently destroyed the said note and evidence of indebtedness, and now denies the obligation of same and any indebtedness thereon."

The defendant answered by demurrers, the general denial, and specially denied the plaintiff's allegations of fraud and conversion of the securities, and at some length pleaded that the deceased was a brother of defendant, old and infirm, and dependent upon others; that the relation between the deceased and the defendant was at all times the kindest, and that for many years prior to the death of deceased he had made his home with defendant and his family, and that the relations were at all times most pleasant, satisfactory, and tender, and that such condition remained up until his death, which came as a result of a serious surgical operation; that prior to said operation the deceased, being fully cognizant of the seriousness of the proposed operation, and being fully conscious that such operation might or might not be fatal, and being in full possession of his faculties, then and there said to the defendant in effect and substance that he, the defendant, had given him a home when other relatives had refused, and that he, the defendant and his family, had been good to him during his stay in their home, and that he, the deceased, wanted him, the defendant, to have all the papers and property, being notes, mortgages, stocks, and other securities and papers then owned by the deceased, and then in a certain safety box in the safe-keeping of J. N. Winters Realty Company, in Fort Worth, to which box the deceased then had the key; that the deceased then and there said unto this defendant in words in substance and effect that everything in that box "is now yours," and then and there delivered to defendant the key to said box, which was then and there locked, and in the possession of the person or persons above stated, and defendant then and there accepted said gift, and did then and there and from henceforth have possession of the same and claimed the same as his own, as was his right, and since said time no other person has at any time had the control or possession of said box except by the consent or under the direction of defendant.

The defendant further pleaded, in substance, in answer to the allegations of plaintiff seeking a recovery upon a $3,000 note, that on or about September 1, 1922, the defendant had made and delivered to the deceased a promissory note for $2,250 bearing interest at the rate of 8 per cent. per annum, payable on demand, but that the same had been later canceled and destroyed by G. W. Hunt before his death and the stock for which the note was made given to defendant.

The trial was before a jury, but upon the conclusion of the evidence the court gave the following instructions:

"Gentlemen of the jury, With reference to the issue made in this case of the ownership of the contents and the property represented by the contents of the box, as set out in plaintiff's petition, you are instructed that you will find a verdict for the plaintiff.

"As to the issue tendered by the plaintiff as to the liability of the defendant to the estate of G. W. Hunt, deceased, upon a promissory note or notes executed by the defendant, W. W Hunt, you are instructed to return a verdict for the defendant; said issue being tendered by the plaintiff's petition in paragraph 8 thereof."

The verdict of the jury and the judgment of the court was in accordance with the instructions so given.

The defendant seasonably filed a motion for a rehearing, in which he complained of the court's peremptory instruction to find a verdict against the defendant and in favor of the plaintiff for the recovery of the instruments, securities, and properties sued for by the plaintiff. The motion was overruled, and defendant has duly prosecuted this appeal, assigning error as indicated in his motion for rehearing.

We will first consider appellant's assignment complaining of the peremptory instruction. The plaintiff below offered proof of the probate of the will of G. W. Hunt and of plaintiff's appointment as administrator of the estate, with the will annexed.

H. H. Wilkinson testified in behalf of plaintiff below, in substance and so far as pertinent to the question under consideration, that in the summer of 1923 Judge Speer, counsel for defendant, and Mr. Flournoy, counsel for plaintiff, came to the Continental National Bank, of which the witness was vice president, with a box that was represented at the time to contain certain securities and evidences of debt, and made an arrangement with the bank to hold the box pending this litigation. The witness described the box as being about 6 inches wide, 12 inches long, and 6 or 7 inches deep. The box was locked when it was left in the bank, and the key was not delivered to him; that the box was merely left with the bank for safe-keeping, by mutual consent of the parties, and with the understanding that all of them must be present when it was taken down; that about 60 or 90 days before the date of the trial the plaintiff, Judge Speer, and Mr. Winters came to the bank, and wanted to get into the box in order that Mr. Winters could pay a note that was in the box in favor of G. W. Hunt; that Mr. Winters paid the note, and the currency given in payment was then placed in the box.

Mr. Balfour testified in behalf of plaintiff that he was the internal auditor of the Tarrant County Building & Loan Association; that his attention had been directed to an interest which at one time stood in the name of G. W. Hunt; that the amount of his holding in that association at the time of his death on April 14, 1923, was $20,133.33. Since that time there have been two other dividends credited to his account, one on June 30, 1923, amounting to $1,006.67, and one on December 31, 1923, amounting to $1,057; his total credit at the time of witness' testimony being $22,197. That so far as the books of the association show G. W. Hunt is still the owner of that deposit. That it still stands in his name.

J. N. Winters testified in behalf of plaintiff that at one time he had in his custody and office a tin or metal box about 12 inches long, 6 inches wide, and 4 or 5 inches deep, which was left there by G. W. Hunt, now deceased; that G. W. Hunt brought the box to him, he thought, in December, 1922, but was not positive as to the date; that it might have been as late as the middle of January, 1923; that W. W. Hunt, the defendant, was the brother of G. W. Hunt; that he had no arrangement with G. W. Hunt about keeping the box, except he gave him permission to keep the box there; that it was in G. W. Hunt's custody rather than that of the witness; that G. W. Hunt carried the key to the box, the witness had no key to it; that, some time before the death of G. W. Hunt, W. W. Hunt came to the office of witness and got the box and took it out, saying that his brother had asked him to come and get the box; he took the box out with him, and afterwards brought it back and put it in the usual place.

Nell Wadsworth testified in behalf of plaintiff that she had charge of the safety deposit box department in the Continental National Bank, and was in that position in June and July, 1922; that she knew G. W. Hunt in his lifetime, became acquainted...