Kroetch v. Empire Mill Co.

• Decision Date: 16 December 1903
• Citation: 74 P. 868,9 Idaho 277
• Parties: KROETCH v. EMPIRE MILL COMPANY
• Court: Idaho Supreme Court

74 P. 868

9 Idaho 277

KROETCH v. EMPIRE MILL COMPANY

Supreme Court of Idaho

December 16, 1903

NONSUIT-WHEN GRANTED-AMENDMENTS TO PLEADINGS-EVIDENCE-COMMENT ON BY JUDGE-OFFER OF COMPROMISE-EXHIBITS-INTRODUCTION ON CROSS-EXAMINATION.

1. It is reversible error to grant a nonsuit where plaintiff has made a prima facie case.

2. Under sections 4228 and 4229, Revised Statutes, great liberality must be exercised in allowance of amendments to pleadings.

3. Trial judges should make no comment in the presence of the jury upon the weight of evidence or credibility of witnesses.

4. The law favors settlements and compromises of controversies, and evidence of offers or overtures to compromise should not be admitted against a party making such offer or overture.

5. The practice of allowing a party to identify and introduce exhibits on cross-examination of his adversary's witness should only be allowed where the exhibit contradicts something the witness has testified to upon his examination in chief or is intimately connected with something about which he has testified in chief.

(Syllabus by the court.)

APPEAL from District Court of Kootenai County. Honorable R. T Morgan, Judge.

Action for conversion. Judgment of nonsuit was entered from which plaintiffs appealed. Reversed.

Reversed and remanded. Costs awarded to appellant.

Charles L. Heitman, for Appellant.

The first reason alleged by appellants in support of their contention that the motion for nonsuit should have been overruled is to the effect that sufficient evidence had been introduced in favor of appellants to make out a prima facie case, and that the whole case should have been submitted to the jury, and that they would have been entitled to a verdict in the absence of counter-evidence in behalf of the respondents. Furthermore, the testimony shows the conversion and appropriation by the defendants of at least one hundred and sixty-nine thousand (169,000) of the Allen posts. The case of Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019 was an action of replevin to recover possession of cattle. The defendant admitted the taking, but justified on the ground that he did so as a constable armed with an execution against the property of the plaintiff's husband. The possession of the property by the plaintiff was established, and the taking being admitted, the plaintiff made out her case of actual possession and of conversion by the defendant, a nonsuit was granted, and on appeal this court held that the plaintiff having shown that she was in the actual possession of the cattle, that fact tended to show that she was the owner thereof, and established a prima facie case, and that it was error to grant a nonsuit. Where a party makes out a prima facie case it is reversible error for the court to grant a motion for nonsuit. (Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Warner v. Darrow, 91 Cal. 309, 27 P. 737; Butler v. Hyland, 89 Cal. 575, 26 P. 1108.) The ground upon which the district court sustained the motion for nonsuit was that the plaintiff, L. S. Kroetch, had committed fraud against the Empire Mill Company, of which he was an officer at the time, by the entering into the contract for Kroetch Bros. with John W. Allen. In addition to the reasons and authorities above cited, appellants submit that evidence of fraud is a matter of defense, and, furthermore, must be specifically pleaded, which was not done in the case at bar. The only attempt at pleading fraud is found in the answer of the mill company, and is a mere general assertion. The fraud must be pleaded, and pleaded specifically, so that the opposite party will be advised as to what he is called upon to meet. (Fox v. Mining Co. (Cal.), 53 P. 36; Bliss on Code Pleading, sec. 211; Meeker v. Harris, 19 Cal. 279, 79 Am. Dec. 215; Herron v. Hughs, 25 Cal. 556; Capuro v. Insurance Co., 39 Cal. 123; Triscony v. Orr, 49 Cal. 612; Taylor v. Bidwell, 65 Cal. 489, 4 P. 491; People v. McKenna, 81 Cal. 158, 22 P. 488; Gray v. Galpin, 98 Cal. 635, 33 P. 725.) The burden of proving fraud is on the party alleging it; in this case on the defendants. (Beck etc. Lithographing Co. v. Houppert, 104 Ala. 503, 53 Am. St. Rep. 77, 16 So. 522; Giddings v. Steele, 28 Tex. 733, 91 Am. Dec. 336.) The court will not be warranted in finding fraud from the fact alone that circumstances tending to show it have been proven. (Roberts v. Washington Bank, 11 Wash. 550, 40 P. 225.)

Crane & Burgan and Edwin McBee, for Respondents.

The sixth ground for nonsuit is the confusion and intermingling of the posts, whereby the Kellum posts were intermingled with the posts in controversy. In this matter, the witness, Lawrence S. Kroetch, testified as follows: "I took no duty from Allen at all in regard to the Kellum posts; I had no business handling those posts as part of the Allen posts. Whatever I did in regard to the Kellum posts was simply as one of the stockholders and directors and representatives of the Empire Mill Company. I owned one-fifth of the stock of the Empire Mill Company and was interested in looking after those posts. I was just looking after them for the Empire Mill Company; it was not my duty as manager or secretary and treasurer to do so. Those Kellum posts were not marked or branded in any way whatever; none of them were marked or branded or stamped. It would not be possible after they got mixed up together to pick out the Kellum posts. All those posts are pretty much the same size and quality; no substantial difference in them taken as a whole." "I gave Mr. O'Neil instructions to put all those posts in, including the Kellum posts, and he did so." On these facts we think the ruling of the court was justified by the law. The rule with regard to intermingling or confusion is to the effect that there are four kinds of confusion: 1. By accident; 2. Vis major; 3. Unintentional; 4. Fraud. In this case the intermingling was intentional, and as it does not come under either of the three first divisions, it must be a fraudulent intermingling. "Confusion with fraudulent intent forfeits all of the wrongdoer's interest." (36 Am. & Eng. Ency. of Law, 2d ed., p. 594; Pulcifer v. Page, 32 Me. 404, 54 Am. Dec. 589.) The rule of law is that where there has been a confusion or intermixing of goods of different owners, that if done by consent, such owners become tenants in common; if otherwise, the whole belongs to the innocent owner unless the goods can be easily distinguished and separated. (Hilliard on Torts, 477; Stephenson v. Little, 10 Mich. 433; 2 Wait's Actions and Defenses, 240, 241; 2 Blackstone's Commentaries, 405; 2 Sedgwick on Damages, 396; Hentz v. The Steamer Idaho 93 U.S. 575, 23 L.Ed. 978; Mors v. Reading, 167 Mass. 326, 57 Am. St. Rep. 464, 45 N.E. 760; Jewett v. Dringer, 30 N. J. Eq. 309; Dillingham v. Smith, 30 Me. 370.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

This action was commenced by the plaintiffs against defendants charging them with the conversion of one hundred and sixty-nine thousand fence posts, thirty-five boom poles, and some rope belonging to plaintiffs, and praying judgment for the value thereof. The defendants answered and denied the allegations of the complaint and the defendant, Empire Mill Company, alleged that it was the owner of the boom poles and one hundred and fifty thousand of the fence posts, and charges that the plaintiff, L. S. Kroetch, procured a bill of sale of and for said property from one John W. Allen in fraud of defendants and without any consideration therefor, and with the intent to defraud defendants and with knowledge that the defendant, Empire Mill Company, had paid $ 4,294.44 as a part of the purchase price for said property, and that said posts belonged to said defendant. The case went to trial before the court with a jury and plaintiffs introduced their evidence and rested their case. Thereupon the defendants applied for a nonsuit and the application was granted and a judgment of nonsuit was duly entered.

Appellant assigns thirty-nine errors in the rulings of the court in this case, the last one of which is directed against the action of the court in granting a nonsuit. Without discussing the evidence introduced, suffice it to say that the court erred in taking the case from the jury. Plaintiffs had made, at least, a prima facie case. They had shown a purchase of the property and introduced a bill of sale therefor, and proved that they had taken possession of the property and its conversion by defendants.

This court has held that it is reversible error to grant a nonsuit where the plaintiff has made a prima facie case. (Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019; Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925.) Since we have concluded that the judgment of nonsuit was erroneously entered and the case must go back for trial, it becomes our duty under the law to pass upon each of the other thirty-eight assignments of error. We shall group these together, however, as much as possible and will refer to them by number rather than quote in this opinion the questions, answers and rulings of which appellants complain.

The first assignment of error is the ruling of the court in refusing to allow an amendment to the complaint after the trial had commenced. It seems that the first amendment requested by plaintiff was allowed by the court, but at the time the court made its ruling allowing the amendment plaintiff submitted a further amendment on the same subject, which was more specific and comprehensive than the first, and the court refused to allow it. The first amendment requested, and which was allowed, was sufficient to...