Levine v. Levine

• Decision Date: 18 March 1926
• Citation: 132 S.E. 320
• Parties: LEVINE. v. LEVINE.
• Court: Virginia Supreme Court

132 S.E. 320

LEVINE.

v.LEVINE.

Supreme Court of Appeals of Virginia.

March 18, 1926.

Error to Circuit Court of City of Norfolk,

Action by Rebecca K. Levine against Philip Levine. Verdict and judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and case remanded.

John N. Sebrell, Jr., of Norfolk, for plaintiff in error.

Jas. G. Martin & Bro., of Norfolk, for defendant in error.

BURKS, J. This was an action brought by Rebecca K. Levine against her husband, Philip Levine, to recover $1,000 which she claims was given to her by her father as a wedding present, and which she loaned to her husband on a promise of repayment, and which he claims was given to him personally by the wife's father. There was a verdictand judgment for the wife against her husband for $1,000 and the costs.

In April, 1924, the parents of the bride gave her an "engagement party" for the "relatives on both sides, " at which her engagement was announced. Both of the parties were residents of Norfolk, and on July 13, 1924, they went to Petersburg, Va., and were married, and a few days thereafter went on a bridal tour to several northern cities. Shortly after their return the parents of the bride gave the couple a reception, and on that night, after the guests had gone, and no one was present except the bride and groom and the parents of the bride, a check for $1,000 was presented as a wedding present. The bride and her father testified positively and circumstantially that the check was given to her. The groom testified equally positively and circumstantially, that the check was given to him. No other witness testified on the subject. The check and the indorsements thereon were as follows:

"Norfolk, Va., August 16, 1924. No. 1674.

"Trust Company of Norfolk: Pay to the order of Mr. & Mrs. Philip Levine, $1,000.00, one thousand no/100 dollars.

"Wedding present. Joseph Kesser."

Stamped:

"Certified. When properly indorsed. $1,000 and 00 cts. Aug. 22, 1924.

"Trust Company of Norfolk.

"A. W. Brock."

Indorsed:

"Mr. & Mrs. Philip Levine.

"Rebecca Levine.

"Philip Levine."

The first and second indorsements were made by the bride, the last by the groom. The check, with indorsements thereon, was offered in evidence by the plaintiff.

The first and only assignment of error we shall consider is that the trial court erred in giving and refusing instructions.

Only three instructions were given, Nos. 1 and 2 at the instance of the plaintiff, and No. 3 at the instance of the defendant. They were as follows:

"(1) The court instructs the jury that, if they believe from the evidence that the plaintiff loaned the defendant money and that he promised to return it and has not done so, it is the duty of the jury to find for the plaintiff for such money, and they may allow interest thereon during the period it has been owing.

"The fact that defendant is plaintiff's husband does not give him a right to her money.

"(2) The court instructs the jury that if they believe from the evidence Kesser gave the $1,000 to the plaintiff, they should find for the plaintiff; and if they believe from the evidence Kesser gave the $1,000 to the defendant, they should find for the defendant.

"(3) The court instructs the jury that before they can find for the plaintiff in this case they must prove by a preponderance of the evi deuce that at the time the check was turned over to Philip Levine he then and there promised the said Rebecca Levine to repay the same.

"The burden of proving that he made such promise is upon the plaintiff, and, unless the jury are satisfied that he did make such promise, they should find for the defendant."

Objection is made to No. 2 on the ground that it directs a verdict upon an incomplete statement of the case, in that it left open the question whether, at the time the wife turned the check over to the husband, there was any agreement that the amount of it should be repaid to the wife; the presumption being, in the absence of such an agreement, of a gift and not a loan.

Undoubtedly, the general rule is that an instruction, which directs a verdict upon a hypothetical statement of facts must state a complete case. Burks' P1. & Pr. (2d Ed.) § 268, and numerous cases cited.

But it must be borne in mind that the testimony for the plaintiff was that the check was given solely and individually to her, and that she loaned the amount to her husband upon his promise of speedy repayment, while for the defendant it was that the check was given solely and exclusively to him and for his individual benefit. The issue between the parties, made by the testimony, was as to whom the gift was made, and not as to the disposition of the proceeds after the making of the gift. To meet this issue, thus sharply made, instruction No. 2 was given, and we are not prepared to say it was erroneous. But, if error, it was harmless, as the defendant's view of the case was fully set forth in instruction 3, given at his instance. Usually, positive error in one instruction cannot be cured by a correct statement of the law in another instruction (American Locomotive Co. v. Whitlock, 63 S. E. 991, 109 Va. 238), but where the error consists in mere incompleteness in an instruction, such incompleteness may be cured by a fuller statement in another instruction. Instructions are to be read as a whole. Virginia Ry. & Power Co. v. Smith, 105 S. E. 532, 129 Va. 269; Henderson v. Foster, 124 S. E. 463, 139 Va. 543, and cases cited.

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