Smith v. Gvirtzman

• Decision Date: 13 April 1942
• Docket Number: 14910.
• Citation: 109 Colo. 314,124 P.2d 926
• Parties: SMITH v. GVIRTZMAN.
• Court: Colorado Supreme Court

124 P.2d 926

109 Colo. 314

SMITH v. GVIRTZMAN.

No. 14910.

Supreme Court of Colorado

April 13, 1942

In Department.

Error to District Court, Larimer County; Frederic W. Clark, Judge.

Action by Frank Smith against Samuel Gvirtzman, also known as and commonly called, Samuel Gvirtz, for trespass and conversion. To review a judgment for the defendant, based upon a directed verdict, the plaintiff brings error.

Reversed and remanded, with directions.

Thomas J. Warren, of Fort Collins, for plaintiff in error.

Jerome Smith and Waldo Riffenburgh, both of Fort Collins, for defendant in error.

OTTO BOCK, Justice.

This is an action for damages for trespass and conversion. Plaintiff alleged that he was engaged in the business of catching and marketing fish; that he was the lessee and in possession of a certain pond or reservoir which constituted his source of supply for fish; that defendant entered upon the premises without right, took fish from the reservoir and drained the water therefrom, all to his damage in the sum of three hundred dollars. The answer was a general denial. At the close of the evidence the court granted defendant's motion for a directed verdict and appropriate judgment followed.

The only question necessary for our determination is whether the trial court committed error in granting the motion for a directed verdict. This requires first a consideration of the pleadings. Plaintiff commingled in one count several causes alleging conversion of his fish and repeated trespasses upon his property, which resulted in the alleged damage. Defendant, failing to require plaintiff to state these causes separately, and filing the snswer by way of general denial should, therefore, have been prepared to meet all such causes. Fulton Investment Co. v. Farmers' Reservoir &amp Irrigation Co., 76 Colo. 472, 231 P. 61; Crandall Realty & Securities Co. v. Tanquary, 23 Colo.App. 564 130 P. 1084.

As to the facts, we adopt in part what plaintiff calls 'uncontradicted and unconflicting testimony,' and which defendant accepts 'as a reasonably fair statement of the facts,' except as to a few corrections to which we shall later refer. These facts are stated as follows: 'Plaintiff was, on April 2, 1939, in the rightful possession of two fish ponds and premises adjacent to the same, * * * the possession of which premises, ponds and fish rights * * * plaintiff had held under lease for a period of twenty years. He lived there when not in Denver, where his market was located. Plaintiff also leased several other Colorado lakes and was, and had been for fifty-two years, in the business of taking, storing and selling fish, principally carp. These fish were stored in the ponds, fed cooked grain, from two to three months, to increase their size and improve their flavor and then sold, mainly to people of the Jewish race, who required the fish to be alive when purchased and generally preferred them large. They were worth from ten to thirteen cents a pound at the ponds on April 2, 1939.

'At five o'clock in the morning on the day in question, plaintiff, accompanied by his helper, Fred Reffel, left his premises * * * bound for the Denver market with two truck loads of live fish which had been taken from the lower pond. When they left the premises the upper pond was full of water. Water was coming into it nicely and overflowing into the lower pond. In the upper pond were about three tons of fish. It had not been touched for two months and its condition, when left that morning, was such that no water could escape unless the gate was moved.

'People of the Jewish race, by custom if not by tenet, use fish in observing the Passover, a religious holiday, which fell on or about the day in question. The defendant had resided in Fort Collins thirty years, knew the plaintiff, the nature and location of plaintiff's business and that the storage ponds were located upon property in the possession and occupancy of the plaintiff. Defendant was of the Jewish race and on said day went to plaintiff's premises, between eight and nine o'clock in the morning to buy some live carp, and, not finding anybody there, went to the residence of one Deines who lived near by, arriving there about eight o'clock in the morning, and asked Deines to go down and get him some fish. Deines refused and defendant left in about fifteen minutes.

'Defendant then called on one La Rue, who also lived near by, and who was employed by the reservoir company as ditch rider but had no authority over plaintiff's ponds or fish, and asked La Rue 'to go down to Mr. Smith's (plaintiff's) place with him to get some fish.' Defendant, in his own car, then took La Rue to plaintiff's premises, choosing the route, without suggestion from La Rue. La Rue opened the gate in the fence and defendant drove his car in and parked it near or upon the dike or dam between the two ponds.

* * *

* * *

'The upper pond would fill in about thirty hours and, with the headgate or outlet clear open, completely drain in about an hour and a quarter.

'When the defendant and La Rue first arrived at the pond it was full of water. La Rue went to plaintiff's house to see plaintiff, who was not there, and he later went back to get a dip net. When he returned water was running out of the outlet, and knowing it would drain the pond and kill the fish and so advising the defendant, he attempted to close the gate, although he knew nothing about it, and asked defendant if the water had stopped and defendant said 'Yes.' La Rue took two fish from plaintiff's pond for the defendant, put them in defendant's car and defendant then took La Rue home. Defendant gave La Rue twenty-five cents for his trouble and La Rue told defendant to settle with plaintiff for the fish. La Rue testified he did not see defendant touch the headgate, that he did not know whether or not defendant opened the headgate. No one but the defendant was present at the pond when La Rue went to plaintiff's house. La Rue admitted conversations with plaintiff's attorney regarding the matter, but denied or did not remember what was said, except that he said 'it could have been done that way' (by defendant) and that he thought defendant or someone had done it in his absence. La Rue left the plaintiff's premises knowing that some water was still running out of the pond.

'The same morning, Virgil Taylor accompanied by his son, Dale, went to plaintiff's premises to see if they could fish on the lake that season and found no one there. Dale called attention to the fish which were 'moving around' and they watched them. At that time, around nine-thirty to ten o'clock, there was about a foot of water in the pond with bare sand clear out at the edges. They thought the behavior of the fish and condition of the pond natural. They then went in search of plaintiff on the far side of the lake, ran out of gas, secured enough to take them back to Fort Collins and on the way back noticed that the pond was almost dry. It was then between eleven-thirty and twelve o'clock. Large numbers of fish, weighing from three to six pounds, were in piles and covered the bottom of the pond.

'Taylor then noticed the Novak car (the Novaks were up from Denver to do some fishing), advised Mrs. Novak of the situation, called Mr. Novak from the lake and upon their return to the pond Deines came along, and by means of sacks, an old sheep skin coat and sand they checked the flow of...