Nebraska Nat. Bank v. Johnson

• Decision Date: 18 May 1897
• Citation: 71 N.W. 294,51 Neb. 546
• Parties: NEBRASKA NAT. BANK v. JOHNSON ET AL.
• Court: Nebraska Supreme Court

51 Neb. 546

71 N.W. 294

NEBRASKA NAT. BANK

v.JOHNSON ET AL.

Supreme Court of Nebraska.

May 18, 1897.

Syllabus by the Court.

1. A plaintiff, in order to recover the proceeds of property stolen by the defendant, is not required to prove the guilt of the latter beyond a reasonable doubt. It is sufficient if he establish the allegations of his petition by a preponderance of the evidence.

2. Equity will, as against a servant charged with the care of the offices of the plaintiff, a banking corporation, and the preservation of the property therein, declare a trust in favor of the latter with respect to the proceeds of money stolen from it by the former while in the discharge of his said duty.

3. The conventional relation of trustee and cestui que trust or other fiduciary relation is not essential to the jurisdiction of a court of equity to declare and enforce a trust with respect to the property stolen from the beneficial owner.

4. Evidence held to support the decree appealed from.

Appeal from district court, Douglas county; Walton, Judge.

Bill by the Nebraska National Bank against Brooks R. Johnson and others. Decree for plaintiff, and defendants appeal. Affirmed.Clinton N. Powell and Howard B. Smith, for appellants.

J. C. Cowin, for appellee.

POST, C. J.

This was an action in the district court for Douglas county, whereby it was sought to impress with a trust in favor of the plaintiff, the Nebraska National Bank, certain property, to wit, lots 3 and 4 of block 3, Willis Park Place addition to the city of Omaha, the legal title of which was held by the defendant Brooks R. Johnson. The cause of action alleged is, in substance, that the defendant above named was, during the month of August, 1890, and for a long time prior thereto, in the employ of the plaintiff bank, his duties being, for a fixed compensation, to sweep the bank's offices, to arrange and care for the furniture therein, and, while in the discharge of his said duties, to watch over, guard, and preserve, to the extent of his ability, all property of the bank, including moneys, notes, and papers; that the said defendant, on the 13th day of August, 1890, while in the discharge of his said duties, and in violation of the trust imposed in him by the plaintiff, wrongfully took, carried away, and appropriated to his own use the sum of $5,000 in gold coin, the property of the said plaintiff; that the said defendant thereafter purchased and improved the property above described with plaintiff's said money so wrongfully taken and converted by him; and that said property is now, and has for a long time been, occupied and claimed as a homestead by the said defendant and his wife, Ellen Johnson. It was further charged that the said Brooks R. Johnson is wholly insolvent, having no property whatever aside from the real estate here in controversy. The prayer was that the defendants might be adjudged to hold said property in trust for the plaintiff for a decree confirming the title of the latter, and for general relief. The defendants answered, admitting that the said Brooks R. Johnson was employed by the plaintiffs as a janitor, in which capacity, and no other, he was acting at the time of the alleged conversion, and denying each and every other allegation of the petition. A final hearing resulted in a finding for the plaintiff, and a decree in accordance with the prayer of the petition, except that the defendant Brooks R. Johnson was found to have contributed the sum of $185 of his own funds to the purchase and improvement of said property, and which sum the plaintiff was required to pay to said defendant, as a condition to the granting of the relief sought, and from which judgment and decree the defendants have prosecuted an appeal to this court.

The first proposition argued on this appeal is that, inasmuch as plaintiff's right of action depends upon the alleged criminal conversion by the defendant, the same degree of proof is required in order to establish the commission of such act as would be necessary to sustain a conviction upon an indictment or information therefor. That the authorities bearing upon the subject are not altogether harmonious, we must confess. It is, for instance, said in 2 Greenl. Ev. § 408, on the authority of Thurtell v. Beaumont, 1 Bing. 339, that “where,” in an action on a policy of insurance, “the defense is that the property was willfully burned by the plaintiff himself, the crime must be as fully and satisfactorily proved to the jury as would warrant them in finding him guilty on an indictment for the same offense.” It is, however, observed in a note to the thirteenth edition of that work that the doctrine of the text above quoted, if supported by the case cited, has been very generally disapproved. There are, it is conceded, American cases which tend to support the contention of counsel, although opposed to the overwhelming weight of authority in this country, and this is particularly true of recent utterances on the subject. As illustrating the trend of judicial opinion upon the question may be cited Welch v. Jugenheimer, 56 Iowa, 11, 8 N. W. 673, in which it is said, referring to an earlier case in the same court: “A more careful examination of the books satisfies us that, whatever may be the rule in actions of slander or libel, where a crime is charged, and a justification is pleaded, the rule in Barton v. Thompson is in conflict with the weight of authority, and cannot be sustained on principle, and is therefore overruled.” And in Kane v. Insurance Co., 39 N. J. Law, 697, the court of errors and appeals, in reversing the judgment of the supreme court, declare...