State ex rel. Olsen v. Sundling

• Decision Date: 24 March 1955
• Docket Number: No. 9371,9371
• Citation: 281 P.2d 499,128 Mont. 596
• Parties: STATE of Montana ex rel. Arnold H. OLSEN, Attorney General of the State of Montana, Relator and Appellant, v. Raymond Joseph SUNDLING, Defendant and Respondent.
• Court: Montana Supreme Court

Page 499

281 P.2d 499

128 Mont. 596

STATE of Montana ex rel. Arnold H. OLSEN, Attorney General of the State of Montana, Relator and Appellant, v. Raymond Joseph SUNDLING, Defendant and Respondent.

No. 9371.

Supreme Court of Montana.

March 24, 1955.

Arnold H. Olsen, Atty. Gen., Emmet T. Walsh, Asst. Atty. Gen., H. M. Brickett, Asst. Atty. Gen., for appellant.

Emmet T. Walsh, Asst. Atty. Gen., argued orally for appellant.

Fitzgerald, Ammerman & Bodine, Gibson & Berg, Livingston, for respondent.

David B. Fitzgerald, Ben E. Berg, Livingston, argued orally for respondent.

DAVIS, Justice.

Claim and delivery by the state (plaintiff and appellant) to recover the possession of a described road roller from one Sundling (defendant and respondent), who had purchased it for $3,500 on September 18, 1951, from one Kallestad. Kallestad himself purchased from Walter R. Rankin, who was an employee of the state, or more specifically of its state park commission.

The complaint alleged right to possession, but not title in the state. Sundling admitted only the official capacity of the attorney general, the relator who brought the action; otherwise his answer was a general denial. By that answer no new matter was set up as a defense.

Consistent with the applicable statutes, R.C.M.1947, § 93-4101 et seq., the state at the time of issuing summons claimed the delivery of the roller in dispute, and has possessed it since.

Trial was to a jury without objection interposed by the defendant to the sufficiency of the complaint, or to any evidence offered upon the ground that it was without foundation in the allegations of that complaint. Accordingly the pleading will be deemed amended to conform to the proof. Green v. City of Roundup, 117 Mont. 249, 254, 157 P.2d 1010; Fulton v. Huggans, 112 Mont. 442, 444, 117 P.2d 273; Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, 282, 152 P. 481, L.R.A.1916D, 836; Lackman v. Simpson, 46 Mont. 518, 525, 129 P. 325; etc.

When the evidence for both parties was in each moved separately and without reservation for a directed verdict. Thereupon the trial judge took the case from the jury and granted the defendant's motion, thus himself deciding all questions of fact as well as of law.

Judgment followed that the defendant Sundling was the 'owner and entitled to the possession of said personal property' and that the plaintiff 'deliver the immediate possession of said personal property' to him. There was no award of damages; nor was the value of the roller fixed.

From this judgment the state has appealed.

Because the action here is at law our review is limited to the inquiry whether there is subtantial evidence to support the trial court's findings and judgment. If so, we must affirm. Granier v. Chagnon, 122 Mont. 327, 335, 203 P.2d 982; Teagarden v. Calkins, 55 Mont. 35, 173 P. 549.

In our view, however, there is none. Specifically, as we read the record, the evidence is without substantial conflict upon the controlling issue of the state's right to possession. As a matter of law we must therefore reverse with directions to enter judgment for the plaintiff.

The argument of the defendant's counsel to the contrary of this conclusion rests upon three points which are to be summarized as follows, viz.,

(1) That the state has shown neither title nor right to possession in itself.

(2) That if the state has proved a right to possession vested in it, then a valid sale is shown to Kallestad by Rankin, the director or acting director of state parks.

(3) That if the sale by Rankin was not in the first instance authorized by the state, it was subsequently ratified.

We shall discuss these contentions in the order of their statement.

First then that the state as plaintiff has shown neither title nor right to possession in itself. We agree at the outset that the state is not the absolute owner of the disputed road roller. But it need not be the holder of the legal title to prevail in this action. By its complaint the state alleges only that it 'was and still is lawfully entitled to the possession * * *'; and, if sustained by the evidence, this is enough against anyone without a better title. Pearl v. Interstate Securities Co., 357 Mo. 160, 163, 164, 206 S.W.2d 975; Smith v. Barrick, 151 Ohio St. 201, 206, 85 N.E.2d 101, 8 A.L.R.2d 1087; Turner v. Pierson-Hollowell Walnut Co., 260 Ill.App. 158, 163, 164; McKinney v. Croan, 144 Tex. 9, 12, 13, 188 S.W.2d 144; Braden v. Cline, 51 Cal.App. 424, 426, 196 P. 913; Odd Fellows' Hall Ass'n v. McAllister, 153 Mass. 292, 294, 295, 26 N.E. 862, 11 L.R.A. 172; 77 C.J.S., Replevin, § 43, pp. 30, 31, 32; 54 C.J., Replevin, § 47, pp. 437, 438, 439; 46 Am.Jur., Replevin, § 23, pp. 15, 16.

The record made at the trial upon this point is that sometime in June 1950 the State of Montana by its state park commission, R.C.M.1947, § 62-301 et seq., before amendment by Chapter 178, Laws of 1953, came into possession of this roller, which had been theretofore allocated to Montana by the Federal Government as surplus property pursuant to the Federal Property and Administrative Services Act, 1949, Public Law 152, 81st Congress, First Session, 1949; 63 Stat. Part 1, pp. 377 et seq. Here the competent evidence, which we consider, is before us without objection and without contradiction.

We find it immaterial here that the so-called Donable Property Division of the State Department of Public Instruction, which actually took this roller from the federal agency, did not acquire statutory recognition until 1953 and the enactment of Chapter 136, Laws of 1953. It is also immaterial whether at any time before that chapter became law in 1953 the Donable Property Division, or its employees Gleeson and Ernst could accept this roller for the state and thereby vest it with any title or right thereto.

We think the counsel for the defendant have misread our decision in In re Beck's Estate, 44 Mont. 561, 121 P. 784, 1057, and have overlooked the force of their own citation of 81 C.J.S., States, § 104, p. 1076. But however that may be we gather from the uncontradicted evidence in the record and the admissions made in the defendant's brief that it is beyond dispute the roller here in issue was turned over to the State of Montana as surplus property by the Federal Government under the Act noted above, and ultimately was delivered to the state park commission, where it was left under the control and supervision of Walter R. Rankin, who was employed either as state park director, or in some like capacity.

It cannot be disputed also that the Montana state park commission under R.C.M.1947, § 62-304, was authorized to accept this roller as a gift from any one, the United States included, to be used for any of the purposes of the Act which created it. Nor is it disputed, if it be material, that this roller thereafter was kept and used by the employees of the commission in furtherance of the purposes of the Act in question and of the commission's 'jurisdiction, custody and control of all state parks', etc., as are its powers and duties prescribed by section 62-304, supra.

In these circumstances it requires something more than the argument that the Donable Property Division of the State Department of Public Instruction was not at the time recognized by statute to demonstrate that the roller about which this case turns was not lawfully accepted for the state by the state park commission and thereby acquired by the state with its consent and by the authority of its legislature. It is a novel construction indeed of our law which under any circumstances would deny the state the right to accept the gift of a roller to smooth the roads in a state park that undoubtedly could be donated to the state in fee under the statutes from which the commission draws its powers.

The controlling fact here is that the state did come into the lawful possession, by its park commission, of this roller, with the consent of the United States, the owner, and remained thus lawfully possessed until ousted by Rankin's sale to Kallestad sometime in 1951. In other words the United States made Montana its bailee for the use of its park commission, which by statute was authorized certainly to accept this bailment for the state. This is enough. Compare Viers v. Webb, 76 Mont. 38, 42, 245 P. 257; Woods v. Latta, 35 Mont. 9, 20, 88 P. 402; R.C.M.1947, §§ 20-209, 20-203, 47-101; 8 C.J.S., Bailments, § 10, p. 245; 6 C.J., Bailments, § 18, p. 1101; 6 Am.Jur., Bailments, § 11, p. 181, § 14, p. 182.

The state as bailee then was lawfully in possession and is therefore lawfully entitled to that possession as against anyone with no better right. It may vindicate that possession accordingly, and to that end may maintain this action in claim and delivery (replevin at common law). This is the express holding of the citations first above.

Any suggestion of a rule to the contrary was disposed of by the late Mr. Justice Holmes in Odd Fellows' Hall Ass'n v. McAllister, supra, 153 Mass. at page 295, 26 N.E. at page 863, while sitting in Massachusetts more than sixty years ago: 'Whatever may have been the old law, * * * at the present day one who has possession of goods is entitled to keep them as against any one not having a better title, and therefore may maintain replevin for them, as he may trover.'

Hence to prevail in this action the defendant Sundling by his purchase from Kallestad must have got at least Montana's rights as the bailee of the United States; i. e., Sundling by his purchase from Rankin through Kallestad must have acquired the right which the state had to possess and use this roller for its own benefit. The question now is then: Did Rankin have authority to sell the state's interest?

Here we meet the defendant's second point. For him it is argued that Rankin as director of state parks was authorized by statute to make this sale. No other authority or title is suggested. Our inquiry then is limited to an examination of ...