Linscomb v. Goodyear Tire & Rubber Co.

• Decision Date: 28 October 1952
• Docket Number: No. 14569.,14569.
• Citation: 199 F.2d 431
• Parties: LINSCOMB et al. v. GOODYEAR TIRE & RUBBER CO., Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

199 F.2d 431 (1952)

LINSCOMB et al. v. GOODYEAR TIRE & RUBBER CO., Inc.

No. 14569.

United States Court of Appeals Eighth Circuit.

October 28, 1952.

COPYRIGHT MATERIAL OMITTED

Walter A. Raymond, Kansas City, Mo. (Fenton Hume and Howard W. Grant, Kansas City, Mo., on the brief), for appellants.

Hale Houts, Kansas City, Mo. (Henry Depping, Hogsett, Trippe, Depping, Houts & James, Kansas City, Mo., and Robert Crafts, Akron, Ohio, on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This was an action in replevin brought by the Goodyear Tire & Rubber Company, Inc., against Irven E. Linscomb, Gilbert Jackson and Lewis E. Selders to recover possession of a miscellaneous assortment of automobile, truck, bus, and tractor tires and tubes claiming the right to the immediate possession of said property as the owner thereof. It will be convenient to refer to the parties as they appeared in the trial court. Defendants by their answer admitted the jurisdictional allegations of plaintiff's complaint, denied that plaintiff was the owner or entitled to the possession of the property in controversy, denied that they had wrongfully taken or detained the same, and asserted right to possession of the property because of their ownership thereof. As affirmative defenses they alleged that plaintiff had abandoned the property in a building destroyed by fire owned by Adams Transfer and Storage Company, and that they by deed of transfer had succeeded to the title which Adams Transfer and Storage Company had acquired from plaintiff. They also pleaded in the alternative that if plaintiff were not held to have abandoned or transferred the property, plaintiff was estopped from claiming it by reason of the fact that defendants undertook the task of removing same from the building at great expense and labor. By way of counterclaim, they claimed damages for interference with the use and occupancy of the premises while the property was being removed, and compensation for salvaging the same.

At the trial defendants admitted that at and prior to the time of the fire all the property involved was in storage in the Adams building which was under lease to the plaintiff.

The action was tried to the court without a jury and the court found all the issues in favor of plaintiff for the cause of action alleged in its complaint, and found in favor of defendants on their counterclaim and assessed defendants' damages at $3,000.

Prior to March 15, 1950, the Adams Company owned a storage building in North Kansas City, Missouri, which it had rented to plaintiff and in which plaintiff stored automobile and truck tires and tubes. On that date a large part of this building was destroyed by fire and most of the tires and tubes were either destroyed or damaged. Following this fire, plaintiff salvaged 47 carloads of tires and tubes from the damaged building. This operation consumed approximately two weeks, and at its conclusion, plaintiff did not locate any further undamaged property in the building. At the time of the fire plaintiff had paid its rent for a period beyond the date of occupancy and after its removal of the 47 cars of tires and tubes, the building no longer being suitable for storage purposes, it asked for a refund of rent for the period beyond the date of the fire. Plaintiff and the owner of the building, following negotiations, entered into an agreement by which the owner of the building retained the unearned rent and in consideration thereof agreed to remove from the building the debris resulting from the destruction of the tubes and tires. Subsequent to this agreement and during the month of April, 1950, the owner of the storage building sold it to the defendants and they took possession. Prior to April 1, 1950, plaintiff was in possession of the building as lessee and was in possession of it on March 15, 1950 at the time of the fire. On April 1, it had completed the removal of the 47 carloads of merchandise but there remained great quantities of debris varying in depth from a few inches to several feet, but there were no visible whole tires or tubes on the surface of the debris. A representative of the plaintiff, before leaving the premises, made a visual inspection of the debris and dug into it with a stick for the purpose of detecting the presence of any further salvage. Other inspections were made for plaintiff for like purpose but without results and plaintiff did not know there were any whole tires and tubes buried beneath the debris. Plaintiff thereupon removed its equipment and left the premises.

Prior to the time of the fire, defendants had had wide experience in salvaging operations and they began negotiations looking to the purchase of the damaged property and these negotiations were consummated May 10, 1950, by a transfer to them by warranty deed of the property by the Adams Company. At the time of purchasing the property, defendants did not know there were any good tires and tubes in the debris. In connection with the purchase of the property, defendants had a written contract of sale dated April 20, 1950, which recited that "The improvements on the property have been destroyed by fire and said land with the debris resulting from said destruction is being sold in the present condition thereof." About the middle of April, defendants began salvaging operations and on April 25 they found some good tubes on the fourth floor and ultimately the tires and tubes involved in this action were exhumed by the defendants from the debris. It was not until much of the debris had been removed by defendants that they found what appeared to be merchantable tires and tubes at the bottom of the piles of destroyed tires and tubes. Upon being advised by the defendant of the finding of merchantable tubes and tires, plaintiff claimed ownership and defendants likewise claimed ownership. The court found that plaintiff had no intention of abandoning any tires or tubes which had the appearance of being first class merchandise, and the court likewise found that the plaintiff did not acquiesce in the defendants' claim of ownership of the property here involved. On the evidence produced and considered in connection with all the attending circumstances, the court found that plaintiff was not guilty of lack of due caution in failing to discover the tires buried beneath the debris at the time it vacated the building and that it had no knowledge of the existence of the additional tires and tubes, and did not intend to and did not in fact abandon them. Further facts will be developed in the course of this opinion.

In seeking reversal, defendants in substance contend (1) That the court erred in holding that plaintiff had not abandoned the tires and tubes in question. (2) That the court erred in failing and refusing to find that plaintiff transferred and conveyed all its title and interest in the property in question to Adams Transfer and Storage Company. (3) That under the facts as proven, plaintiff is estopped to claim any interest in the tires and tubes salvaged from the debris in the building involved. (4) That by negotiations of settlement between plaintiff and Adams Company, the Adams Company acquired title to all the contents of the building and defendants succeeded to that title. (5) That the judgment in favor of defendants on the counterclaim is grossly inadequate.

This being a replevin action it was incumbent upon plaintiff to establish its right of possession at the time of the commencement of its action. The action is a possessory one rather than one for the determination of title, but in this case plaintiff bases its right of possession on a claim of ownership and, hence, in the final analysis the question for determination is whether or not plaintiff at the time of the commencement of its action had title to the property involved. Its right of recovery must be bottomed on the strength of its own title rather than the weakness of the title of defendants.

As the court found all the controverted issues of fact involved in plaintiff's cause of action in favor of the plaintiff, we must consider its findings as presumptively correct and they cannot be set aside unless clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. As the court found the issues in favor of the plaintiff, we must assume that it resolved all conflicts in the evidence in plaintiff's favor and we must take that view of the evidence which is most favorable to the prevailing party. United States v. Beatty, 8 Cir., 192 F.2d 945; Noland v. Buffalo Ins. Co., 8 Cir., 181 F.2d 735. If when so viewed the findings are sustained by substantial evidence, we must accept them. So far as the facts which we deem determinative of the issues involved herein are concerned, there is little conflict, but the parties do not agree as to the inferences that may be drawn therefrom. It being admitted that the property in controversy was at and prior to the time of the fire the property of plaintiff, the burden of proof that subsequent thereto it lost or was divested of that title was upon defendants. As has been observed, it was the contention of defendants in the trial court, and they renew that contention here, that plaintiff abandoned the property and thereby lost title thereto. An abandonment must be made to appear affirmatively by the party relying on it, and an intention to abandon will not ordinarily be presumed, and this is particularly true if the conduct of the owner can be explained consistently with a continued claim. Proof of abandonment must be made by the one asserting it by clear, unequivocal and decisive evidence. In this case the law of the state of Missouri is applicable. We have recently had occasion to consider the Missouri law on the issue of abandonment. Equitable Life A. S. v. Mercantile-Commerce Bank & Trust Co., 8 Cir., 155 F.2d 776; Rosenbloom v. New York Life Ins. Co., 8 Cir., 163...