KUYKENDALL v. FlSHER.
| Decision Date | 11 December 1906 |
| Citation | 61 W.Va. 87 |
| Parties | KUYKENDALL v. FlSHER. |
| Court | West Virginia Supreme Court |
Money or property is not lost in the sense that a finder may, by his discovery and possession thereof, obtain absolute title thereto, unless it has been voluntarily abandoned or cast away by the? owner. (p. 88.)
Property is usually considered lost in a legal sense when the' possession has been casually and involuntarily parted with, as in the case of an article accidentally dropped by the owner, (p. 88.)
Coin, gold and silver plate and similar articles hidden for safe' keeping and forgotten, or remaining undiscovered by reason of the' death of the person who hid them, are technically known as trea sure trove, (p. 100.)
The finder of lost property or treasure trove acquires, by theact of finding, no right of property thernin as against the owner; but, as against all other persons, he is entitled to the possession thereof as a quasi depositary, holding for the owner, (p. 101.)!
In a contest between the finder of money and an alleged owner thereof, proof by the latter of circumstances strongly tending to establish title in him, unopposed by any evidence tending in an ap preciable degree to prove the contrary, precludes the giving of instructions, predicated on the assumption of conflict in the eyidence, requiring a verdict for the party in whose favor it preponderates, (p. 102.)
The giving of instructions, having no basis or foundation in the evidence in the case in which they are given, is prejudicial and constitutes reversible error, (p. 102.)
When the evidence adduced by one of the parties to a civil action at law is sufficient to warrant a finding in his favor, and no evidence appreciably tending to overthrow the case so made has. been adduced by the opposite party, it is the duty of the court todirect a verdict in favor of the former, if requested so to do. (p. 102.)
A defendant who asserts title in himself independent of any contract, express or implied, between him and the plaintiff, cannot interpose, as a defense to the action, failure on the part of the latter to demand from him the property in controversy before the commencement of the action. (p. 102.)
Error to Circuit Court, Mineral County.
Action by Edward Kuykendall, by his next friend, against Harry G. Fisher, administrator. Judgment for plaintiff, and defendant brings error.
Reversed and Remanded.
Harry G. Fisher, for plaintiff in error. W. H. Griffith, for defendant in error.
poffenbarger, judge:
A writ of error to the circuit court of Mineral county has brought here, for review, a judgment in favor of Edward Kuykendall, an infant, suing by his next friend, against Harry C. Fisher, as administrator of the estate of Ellen Hughes, deceased, rendered by that court on an appeal from a judgment of a justice of the peace, in whose court the action originated.
As the rulings complained of relate to the rejection of evidence offered and instructions given and refused, a statement of the principal facts and the nature of the case, with reference, to some of the evidence, is necessary.
Fisher, as administrator of Ellen Hughes, sold to one Fierce Helmick, among other household articles, a heating stove. Sometime afterwards the plaintiff, Edward Kuykendall, a boy about thirteen years old, while playing about the premises of Helmick, discovered in the stove, a small tobacco sack containing a considerable amount of money in gold, and wrapped in a cloth. Not knowing its value he gave some of it away and probably lost a portion of it. He gave to Chas. Beemas, another boy, ten dollars, who handed it to Mrs, Helmick and to a boy named Jackson Mayhew two dollars and a half, and on returning home his mother took from him what he had left, amounting to one hundred and forty-five dollars. This she took to Fisher, the administrator, and delivered it to him. Thereupon Fisher cle- manded and received from Mrs. Helmick what she had received, and from the Mayhew boy what he had received, and advertised the fact of the loss of a portion of the money, but was unable to recover any more. There is considerable conflict in the evidence as to what passed between Mrs. Kuykendall and the administrator, at the time of the delivery to him of the money she had taken from the boy, she contending that it was delivered to him as a mere bailee, until such time as he might determine whether it belonged to the estate of the deceased, and he contending that it was delivered over to him absolutely as the property of his decedent. Witnesses for the plaintiff also protest ignorance as to the place in which the money was found, Helmick having had two stoves in the out house in which it was discovered; but the-evidence of the defendant is positive and direct as to the stove in which it was found. He testifies that the boy took him to the stove and it was exactly like the one he had sold to Helmick and he believed it was the same stove. In opposition to the contention that the money was found in that stove Helmick declares he poured the ashes out of the stove on the floor of the room in which it was when he purchased it. Witnesses testify that the floor of the room, upon examination sometime after the removal of the stove, showed no sign of any ashes having been on it, and the boy says lie found the package in the bottom of the stove on the ashes. Fisher further showed, by his own testimony, that his decedent had some money at the time of her death. He found in one bank about $180.00 in which it had been deposited for about two years, in another at Pittsburg $475.50, with accumulated interest, and some stock in a AVashington building and loan association from which he realized about $125.00. It further appeared from the testimony of James Hughes, a brother of the decedent, that his sister, a short time before her death, had in her possession a pocket with strings attached to it by which it could be fastened around her waist, out of which she took, and put it into his hand, a small package wrapped in cloth, which he believed, after having felt it through the wrappings, to contain gold, but he did not see it. Defendant offered to prove by this witness declarations made by the decedent, concerning the contents of the package and the value thereof, but the court rejected the evi- clence. Heattempted to prove the same sort of declarations by another witness, Mrs. H. G. Steortz, but the court refused to allow her testimony to go to the jury. Helmick admits in his testimony that Fisher told him, after he had bought the goods, including the stove, that some money had been lost about the Ellen Hughes premises, and if he should find it, it would belong to the estate. Sometime after the delivery of the money to the plaintiff, Edward Kuykendall and Helmick brought an action against Fisher in his individual capacity for the recovery of the money before Justice Doyle, which as to Helmick was abated, and as to the boy, was defeated, Then this action was brought against Fisher in his fiduciary capacity before another justice.
After the evidence had been heard by the jury, the court gave, at the instance of the plaintiff, the following instructions:
The defendant requested the court to give the following instructions:
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