Jackson v. City of Columbia

• Decision Date: 05 January 1920
• Docket Number: No. 13391.,13391.
• Citation: 217 S.W. 869
• Parties: JACKSON v. CITY OF COLUMBIA et al.
• Court: Missouri Court of Appeals

217 S.W. 869

JACKSON v. CITY OF COLUMBIA et al.

No. 13391.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Action by Izora Jackson against the City of Columbia and another. From an adverse judgment, plaintiff appeals. Affirmed.

E. C. Anderson, of Columbia, and Don C. Carter, of Sturgeon, for appellant.

McBaine, Clark & Rollins, of Columbia, for respondents.

TRIMBLE, J.

This is an action in replevin to recover possession of five cases of pint bottles of sealed Elk brand whisky thirteen cases of half-pint bottles of the same brand of liquor, and seven barrels of beer. The case was by agreement tried before the court without a jury. Judgment was rendered "that plaintiff is not entitled to the possession of the personal property described in plaintiff's petition." Plaintiff has appealed.

The main contention is that, under the law and the evidence, the court was bound to find for plaintiff and could not properly do otherwise. The case, however, is an action at law, and the finding of the court sitting as a jury stands on appeal as does the verdict of a jury. Consequently, if there is any evidence upon which the finding and judgment can be upheld, they will not be disturbed in the appellate court merely upon the ground that they should have been the other way.

Plaintiff, a negro and a convicted violator of the local option law, lived in Columbia. On Sunday morning August 18, 1918, the defendant Whitesides, city marshal of Columbia, learned from his deputy that a truck load of what he suspected to be intoxicating liquor was being taken into plaintiff's yard. The marshal accosted plaintiff on the street and asked him about it. He denied that any whisky had been left there, but went with the marshal to plaintiff's home, where the marshal after searching the premises found a shed that was closed and locked but which plaintiff assured him contained nothing but junk and other old things. He denied having a key to the shed, but when the marshal began prying off, the hinges to the door plaintiff procured a key and unlocked the door, and the intoxicating liquor was found. Plaintiff denied it was his, saying it belonged to John Miller, another negro in Columbia, also a violator of the liquor laws. The cases of whisky each bore the name of John Miller as consignee in a shipment from Quincy, Ill., to John Miller at Moberly, Mo.; and there is no dispute but that the shipment was made to Moberly to John Miller, and that Miller together with a man by the name of Gregory brought the liquor and beer from Moberly in a truck and placed it in plaintiff's shed where the marshal found it. It is also beyond dispute that, at the time the shipment to Moberly was made, the plaintiff was in jail serving time for a violation of the local option law.

The marshal took charge of the intoxicating liquor, and plaintiff was arrested and charged with storing of the same for John Miller, to which charge he pleaded guilty and paid a fine of $300 and costs. Afterwards, however, plaintiff claimed that he was the owner of the goods and brought this suit to recover possession of them. He claims that Miller does not own them and has no interest in them; that he had them sent to Moberly consigned to Miller so that the latter could get them and bring them to Columbia for him. He admitted that he had a federal license to sell intoxicants and said he bought the liquor intending to sell it in Columbia. Moberly was at that time a "wet" town, but the local option law was in force at Columbia. Plaintiff offered evidence to show that it was his money that paid for the liquor; and both he and Miller swore the latter had no interest in the goods, but that plaintiff owned them.

If the liquor was Miller's, then the court was justified in ending against plaintiff on that ground, since it is, and for a long time has been, the law in Missouri that it is a good defense to a replevin suit to show that general ownership is in some one other than the plaintiff. Broadwater v. Dame, 10 Mo. 285; Baker v. Campbell, 32 Mo. App. 529; Moriund v. Johnson, 140 Mo. App. 345, 124 S. W. 80; American Metal Co. v. Daugherty, 204 Mo. 71, 102 S. W. 538; Draper v. Farris, 56 Mo. App. 417, 419. And even if the liquors were owned by plaintiff and Miller jointly, plaintiff could not prevail. Steckman v. Galt State Bank, 126 Mo. App. 664, 105 S. W. 674. And the fact that Miller is making no claim to the liquor does not necessarily change this last-mentioned rule. For good reasons Miller may well desire to disclaim any ownership of or interest in the goods, and on the other hand if he does own or have an interest in them, good reasons exist why such ownership should be recognized and the case decided in strict accordance with the rules governing such fact even though he denies it.

With the evidence in the case that plaintiff denied ownership and asserted that Miller owned them, that plaintiff pleaded guilty and paid a fine for storing the goods for Miller, that plaintiff was in jail when the goods were shipped to Moberly consigned to Miller and Miller got them and brought them to Columbia, and that both plaintiff and Miller were engaged in the business of violating the liquor laws, can it be said the trial court is compelled to believe plaintiff and his witnesses when they say he, and not Miller, owns and is entitled to the possession of the...