Olson v. O'Conner

• Decision Date: 03 November 1900
• Citation: 84 N.W. 359,9 N.D. 504
• Parties: OLSON v. O'CONNER, Sheriff, et al.
• Court: North Dakota Supreme Court

9 N.D. 504

84 N.W. 359

OLSON

v.O'CONNER, Sheriff, et al.

Supreme Court of North Dakota.

Nov. 3, 1900.

Syllabus by the Court.

1. It is not error, in the trial of an action to recover damages for the conversion of property, to permit witnesses who are personally familiar with the facts upon which the ownership of such property is based to testify directly to the ownership of the same, as a fact. The rule is otherwise where the facts constituting ownership are complex, or are not all within the knowledge of the witnesses, so that the answer as to ownership involves the opinion or conclusion of the witnesses.

2. Ordinarily a statement as to the ownership of property is a statement of fact, and in such cases a direct answer is admissible. Where, however, it is a mixed question of law and fact, and a witness has answered against the objection that the question calls for a conclusion, the error may be cured by a disclosure of the facts upon which the conclusion is based, either in direct or cross examination.

3. The plaintiff, who is a married woman, sues to recover the value of a quantity of grain taken from her by the defendants as the property of her husband. It was grown on land to which she had title. Defendants requested the court to instruct the jury that if they found that her husband had transferred the title of the land to her to defraud his creditors, and she knew that fact, the transfer was void. held, that the instruction was properly refused, inasmuch as it appeared that the land was a homestead.

4. A certain instruction examined, and held not vulnerable to the objection that it is unintelligible and erroneous.

5. The fact that a husband gratuitously devotes his time and skill to the management of his wife's land and the conduct of her farming operations does not operate to vest in him the title to the crops grown thereon.

6. Both the plaintiff and her husband testified that she owned the grain which was taken by defendants, and stated the facts upon which her ownership rested, namely, that she owned the land, and raised it in her own right. Held, that the court did not err in refusing to direct a verdict for the defendants on the ground that the evidence showed conclusively that plaintiff was not the owner.

Appeal from district court, Grand Forks county; C. J. Fisk, Judge.

Action by Stina M. Olson against M. J. O'Conner, sheriff, and Andy Jones. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. Reversed.J. A. Sorley, for appellant. George A. Bangs, for respondents.

YOUNG, J.

Action in conversion to recover the value of a quantity of grain. Plaintiff claims as owner, and alleges that the grain in controversy was raised by her in 1896, and upon land of which she was the owner. Defendants admit the taking, and the quantity and value of the grain, but allege as a complete defense that the same was not the property of the plaintiff, but was owned by Albert G. Olson, plaintiff's husband, and that the same was taken by the defendant O'Conner, as sheriff of Grand Forks county, under and by virtue of certain claim and delivery proceedings which were based upon a chattel mortgage thereon executed and delivered by the said Albert G. Olson, the defendant in said claim and delivery action, to Andy Jones, the plaintiff therein. Jones is joined as defendant in this action. Thus it will be seen that the case turns on the ownership of the grain in controversy. It is conceded that, if plaintiff's husband was the owner, then the taking by the defendants was lawful, and plaintiff cannot recover; and, on the other hand, if plaintiff was the owner, such taking was unlawful, and plaintiff is entitled to recover. The case was tried to a jury, and a verdict was returned in favor of plaintiff. The defendants moved for a new trial, and this was granted. Plaintiff appeals from the order granting a new trial, and assigns the same as error. The motion was based entirely upon errors of law occurring at the trial. Accordingly the order sustaining the motion must stand or fall upon the result of our review of the alleged errors. There is nothing in the record to indicate what particular grounds the court relied upon in granting the motion We will, however, consider all that appear of substantial merit.

Counsel for respondents in his brief submits five propositions in support of the order granting a new trial. They are as follows: (1) Error in the admission of certain testimony; (2) error in the failure to charge, amounting to a misdirection; (3) refusing to charge as requested; (4) error in the charge; (5) refusal to direct a verdict. A brief statement of facts is necessary to a consideration of these alleged errors. The grain in controversy was grown in 1896 upon a quarter section of land, which was then, and for five years prior thereto had been, occupied by the plaintiff and her husband as their homestead. The title to the land was in the plaintiff at all times since it was purchased. It was purchased with money derived from the sale of their former homestead. The title to this former homestead was in plaintiff when sold, and for four years prior thereto. Originally the title to it was in her husband. It appears that he transferred the title to her about the time a certain judgment was rendered against him, in favor of the Sandwich Manufacturing Company, in the district court of Grand Forks county. On June 23, 1896, the defendant Jones secured the issuance of an execution on said judgment, and in company with a deputy sheriff visited plaintiff's residence, and took steps towards making a levy. No levy was made, however. Instead, the defendant Jones and the deputy sheriff induced plaintiff's husband to accompany them to Grand Forks, and there, at the solicitation of defendant Jones, Olson executed the note and chattel mortgage in favor of Jones, which have been referred to, as the basis of the claim and delivery proceedings, covering the crop then growing upon his wife's land. The plaintiff was not present when the mortgage was executed. Neither did she authorize or ratify its execution. Olson testifies that he protested against giving the mortgage on the ground that the property was his wife's, and this is corroborated by the scrivener who drew the chattel mortgage. Jones himself says that he had difficulty in getting him to sign a mortgage for so large an amount, and that Olson stated that the real estate was not his, but belonged to his wife, but did not say the chattel property was his wife's, and did say that the crop was his. This latter statement is opposed to the testimony of both Olson and the scrivener. The fact is not disputed that the plaintiff had the apparent legal title to the land upon which the grain in question was grown. It is also one of the undisputed facts in the case that the plaintiff and her husband, with their children, resided on this farm at all times here in question, and that the grain involved in this action was grown upon this land. As to the ownership of the grain, plaintiff testified that she owned the land, and that the grain was raised under her direction and control; that the actual labor was done by her husband, their son, and hired men; that most of it was done by her husband, who generally marketed the grain and brought her the money; that he usually made the purchases for the farm; that all disbursements were made by her, directly or through her husband, acting for her and at her request; that this was also the general method upon which she had conducted her farming operations for the nine years that she had title to the lands upon which they lived. Olson's testimony is to the same effect.

With these preliminary statements, we turn to the consideration of the errors upon which respondents rely to support the order granting a new trial. The first relates to rulings admitting answers to the following questions propounded to plaintiff in redirect examination: “(1) Q. For whom did Albert G. Olson work in 1896? (2) Then you are controlling and running the farm? (3) Q. Whose grain was it, raised there in 1896?” And this question asked of Albert G. Olson in his direct examination: “(4) Q. You may state who was the owner of the crop?” The objection to each question was that it was incompetent and called for the conclusion of the witness, and counsel contends that the overruling of such objections was error. The first two of the above questions so clearly call for statements of facts, and not conclusions, that they do not require extended notice. Plaintiff's answer that her husband worked for her, and that she ran the farm, was a statement of fact, purely, and in no particular rested upon her opinion or inference. The other two questions call for a direct statement as to the ownership of the grain in controversy. Counsel's contention is that the answers to these questions were merely expressions of the opinions and conclusions of the witnesses, and were therefore objectionable, and he urges the governing rule that “when ownership is a material and ultimate fact to be determined in an action, and is controverted upon the trial, the witnesses should testify to the principal facts within their knowledge which bear upon such question, and not give their mere opinions and conclusions thereon.” The rule as thus stated by the court of appeals of Kansas in Brown v. Bank, 42 Pac. 593, is in harmony with the current of authority. Farmer v. Brokaw (Iowa) 71 N. W. 246; Simpson v. Smith, 27 Kan. 565; Hite v. Stimmell (Kan. Sup.) 25 Pac. 852;Montgomery v. Martin (Mich.) 62 N. W. 578;Bahe v. Baker, 44 Ill. App. 578;Nicolay v. Unger, 80 N. Y. 54. Undoubtedly the foregoing authorities correctly state the rule where the answer of a witness as to ownership involves his construction of facts or his conclusion as to what they establish. In such cases it is erroneous to permit witnesses to testify to the ultimate fact of ownership, and by so doing compel the jury to...