Reading Trust Co. v. Thompson

• Decision Date: 01 July 1916
• Docket Number: 38
• Parties: The Reading Trust Company v. Thompson, Appellant
• Court: Pennsylvania Supreme Court

98 A. 953

254 Pa. 333

The Reading Trust Company v. Thompson, Appellant

No. 38

Supreme Court of Pennsylvania

July 1, 1916

Argued May 2, 1916

Appeal, No. 38, Jan. T., 1916, by defendant from judgment of C.P. Berks Co., May T., 1915, No. 63, on verdict for plaintiff, in case of The Reading Trust Company, John D Eisenbrown, and E. Carroll Schaeffer, Executors of E. W Alexander, deceased, v. John S. Thompson. Affirmed.

Replevin for the recovery of certain coupon bonds. Before WAGNER, J.

The facts appear by the opinion of the Supreme Court.

Verdict for the plaintiff for the bonds replevied, and $10,735.83 damages, and judgment thereon. Defendant appealed.

Error assigned, among others, was in refusing defendant's motions for a new trial and for judgment n.o.v.

The judgment is affirmed.

Cyrus G. Derr, with him Richmond L. Jones, for appellant.

Isaac Hiester, with him E. Carroll Schaeffer and C. H. Ruhl, for appellees.

Before MESTREZAT, POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

This is an action of replevin to recover possession of certain negotiable coupon bonds of the par value of $45,000, being nine groups of five thousand dollars each. The Colonial Trust Company is a banking institution located at Reading, of which the defendant, John S. Thompson, was the active man in charge as secretary and treasurer.

In March, 1911, E. W. Alexander, the deceased, rented a box in the safe deposit vault of said institution, where he kept his bonds and other securities. He had the two keys to his box; but keys to the vault, called auxiliary keys, were at the bank in the possession of defendant. The last time Mr. Alexander had access to said box was October 8 or 9, 1912. He became sick a few days thereafter and died on the 24th day of the following November. His executors found in said box all of his securities, except the bonds in suit, which were missing. About six months thereafter, through the collection of coupons, it was discovered that defendant had opened an account with a bank in Philadelphia, where he had placed said bonds, or at least a portion of them.

Then this suit was brought and plaintiffs filed a declaration claiming said bonds as the property of the estate, to which defendant filed an affidavit of defense denying the taking of bonds, but stating inter alia, "The defendant admits that E. W. Alexander was, in his lifetime, possessed of the bonds described in the declaration up to about October 8 or 9, 1912, but the defendant denies that he, the said S.W. Alexander, was possessed of said bonds after about October 8 or 9, 1912."

The affidavit then avers an oral gift of said bonds by Alexander to defendant, accompanied by a delivery to him of possession of the same, giving the alleged reason therefor and details thereof.

At the trial, plaintiffs offered evidence tending to show the ownership and possession of said bonds by Alexander, and that they were placed by him with his other securities in said box in the vault, and that he collected coupons thereon down to and including those maturing October 1, 1912. None of which matters was denied in the said affidavit or at the trial. Defendant practically offered no evidence, his own testimony being excluded because of Alexander's death, and that of a Mr. High, called by him, and by whom he offered to prove that some six months before his death the deceased said, "I must take care of John Thompson, he has taken care of me," as being too remote and not connected with the subject matter in suit. Against defendant's objection plaintiffs were given the conclusion to the jury and the verdict was in their favor.

In disposing of defendant's motion for a new trial, the court below says inter alia, "There being no evidence whatever to establish defendant's allegation of title by gift to these bonds, and a prima facie case having been made out for the plaintiffs by the pleadings and our rules of court thereon, it was not necessary for plaintiffs to submit any oral evidence, and the case was in a position to require an affirmance of plaintiffs' request for binding instructions."

The affidavit of defense substantially admits the ownership and possession of these bonds in Alexander about six weeks prior to his death. The only title which defendant sets up is an alleged parol gift at that time, and, under the circumstances of this case, the burden was upon him to make proof thereof. The general rule is that possession is prima facie evidence of ownership of negotiable...