Miller v. Marks

• Decision Date: 25 January 1886
• Citation: 20 Mo.App. 369
• Parties: WILLIAM MILLER, Appellant, v. JOHN F. MARKS, Respondent.
• Court: Missouri Court of Appeals

20 Mo.App. 369

WILLIAM MILLER, Appellant,

v.JOHN F. MARKS, Respondent.

Kansas City Court of Appeals, Missouri.

Jan. 25, 1886.

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Reversed and remanded.

The case and facts are sufficiently stated in the opinion.

SAM. E. MCCRACKEN and B. L. WOODSON, for the appellant.

I. Possession is only prima facie evidence of ownership, and it was the province of the jury to raise the presumption arising from the fact of possession, and it was error for the court to tell the jury that the fact of possession being proved, the law presumed the defendant to be the owner of the property in question. 2 Best on Evid. 589, and note; 28 Mo. 388.

II. There are presumptions of law and of fact, and where a presumption is one of fact the court is not warranted in declaring it to the jury as a presumption of law. Hilliard on New Trials, 226; Barrett v. Ham, 28 Mo. 388; King v. Pope, 28 Ala. 601. The presumption arising from possession is a presumption of fact--the fact of ownership. Ownership is a fact and the ultimate fact to be proved in every possessory action.

III. The court should not comment on the evidence. It is the province of the jury to draw inferences from the facts in evidence, and the court should not give undue importance to particular facts in evidence by telling the jury that they are authorized to draw certain specified inferences from them. Chouquette v. Barada, 28 Mo. 491; Rose v. Spies, 44 Mo. 20.

IV. Instructions must be founded on facts in evidence. It is error to instruct upon a state of facts, of which there is no evidence in the case to sustain. Whittelsey's Pract. 382; Turner v. Loler, 34 Mo. 461.

V. The naked possession of personal property for a short time, and exercise of acts of ownership over it, is not evidence of transfer of property, when there is no proof of acquiescence or recognition by former owner, of such possession. Thompson v. Haile, 3 Wend. (N. Y.) 406.

No brief on file for respondent.

PHILIPS, P. J.

This is an action of replevin for the recovery of a lap robe, alleged to be the property of plaintiff. The evidence of plaintiff tended to show that the robe was his property, and was taken from him by some one without his consent. He found the defendant with it in his buggy. The defendant claimed to have bought it of some person, but the party from whom he thus claimed to have received it was not produced as a witness, nor could he be found or identified. The evidence tended to show that the robe is what is commonly known as an afghan, knit by hand, and that such robes are quite common and much alike in general appearance, and, consequently, somewhat difficult of identification.

On this state of the proofs the court gave, among others, the following instructions to the jury on behalf of the defendant:

“2. If the jury find from the evidence that the robe in question was, at the time of bringing this suit, in the possession of defendant, then the presumption of law is that the same belonged to the defendant.”

“3. The jury is instructed that before the plaintiff can recover in this case he must prove, by a preponderance of evidence, that he is the owner and entitled to the immediate and exclusive possession of the identical robe described in the statement; and that it will not be sufficient for him to show that he is the owner or entitled to the possession of a robe of like description and value as that set out in his statement, but that it must be such as can be distingnished and separated from all others.”

The jury returned a verdict in favor of defendant, and from the judgment rendered thereon, the plaintiff prosecutes this appeal.

I. A reversal of this judgment is sought principally on the ground of error committed by the trial court in giving the instructions above copied. Instruction numbered three is faulty in the extreme. It is obnoxious to the objection of being a commentary on the evidence, and unduly directing the attention of the jury to the particular fact of difficulty in identifying the plaintiff's robe. This character of instruction has been repeatedly disapproved by the supreme and appellate courts.

The matter of identity is peculiarly a question for the jury, to be satisfactorily solved by them from all the facts and circumstances surrounding the transaction and the property. They should be left free in making their own deductions from the evidence, uninfluenced by any suggestions from the bench about robes of “like description and value.”

This instruction is especially vicious in advising the jury that before plaintiff could recover, his proof must show that the robe claimed “must...