Strothers v. McFarland

• Decision Date: 24 April 1917
• Docket Number: No. 2024.,2024.
• Citation: 194 S.W. 881
• Parties: STROTHERS v. McFARLAND.
• Court: Missouri Court of Appeals

194 S.W. 881

STROTHERS v. McFARLAND.

No. 2024.

Springfield Court of Appeals. Missouri.

April 24, 1917.

On Motion for Rehearing, May 21, 1917.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Belle Strothers against John McFarland. Judgment for plaintiff, and defendant appeals. Affirmed.

R. L. Ward, of Caruthersville, for appellant. C. G. Shepard, of Caruthersville, for respondent.

STURGIS, J.

In 1908 defendant was collector of the revenue of Pemiscot county, and one Jefferson D. Strothers owed taxes, then delinquent, amounting to about $75. To enforce collection of such taxes the defendant levied on and sold a certain carriage as the property of said Strothers. At the time of such sale defendant was notified that said property belonged to this plaintiff, Belle Strothers, wife of said Jefferson D. Strothers. Notwithstanding this, defendant sold said property, and thereupon plaintiff instituted this suit in trover as for the conversion of her property. The question for decision is whether this property belonged to plaintiff or her said husband.

The case has been twice tried before this, and each time reversed and remanded on plaintiff's appeal. Strother v. McFarland, 166 Mo. App. 364, 148 S. W. 988, and 184 S. W. 483. At the present trial plaintiff had judgment for $200, and the defendant appeals.

Defendant insists, as he did on the previous appeal, that plaintiff's title depends on a gift of this carriage inter vivos by the husband to the wife, and that such attempted gift is invalid for want of a sufficient delivery of possession by the husband to the wife. Plaintiff, however, bases her title on the fact that the original purchase of the carriage was for her, and, though paid for by her husband, yet the title vested in her at the time of the purchase, and not in the husband. In such cases the delivery of the property at the home jointly occupied by the husband and wife is a delivery to the wife rather than the husband. In no other way could the wife become the owner of property purchased for her by the husband as a gift. Where the husband and wife live together her property would naturally be brought and kept at the joint home, and there could hardly be a separate and distinct possession. As to the possession of the respective property of each, a husband and wife are not required to maintain separate establishments and deal with each other as strangers. Due regard must always be had as to what is usual and customary in such matters. In the present case, however, the title to the home premises where this property was delivered and kept was in the wife. The point now urged for reversal received due consideration by the St. Louis Court of Appeals on the first appeal. Strother v. McFarland, 166 Mo. App. 364, 369, 148 S. W. 988, 990, where the court approved the instruction given on this trial and said:

"In those cases where during coverture the husband purchases an article for the wife and the delivery is made under the purchase at their home, jointly occupied, * * * the law regards such delivery as one of possession to the wife in accordance with the obvious intention of the parties and proceeds as though such possession was never with the husband; for obviously, in such circumstances, if the husband be regarded as having possession at all, it could have been taken by him only in behalf of his wife. See authorities in point; Schooler v. Schooler, 18 Mo. App. 69, 77; Wheeler v. Wheeler, 43 Conn. 503."

The fact that plaintiff's husband purchased this carriage for her was testified to by the dealer who sold it. His evidence included the statement made to the dealer by the husband that he was purchasing the carriage for his wife. It was also shown that he had her select same from a catalogue. Defendant objected to this evidence on the ground that what the husband said was incompetent as being in the nature of hearsay, and, since the husband was not a competent witness to prove this, the same result should not be accomplished by indirection. That this evidence was considered proper by the St. Louis Court of Appeals is evident from a reading of the two former decisions in this case above cited. To this we agree, because what the husband said at the time and in the course of the purchase is a part of the res gestæ. Min. Co. v. Fidelity, etc., Co., 161 Mo. App. 185, 199, 143 S. W. 438. As stated in the opinion on the first appeal, there is not the slightest evidence of bad faith on the husband's part or that he had any motive at the time for conferring title upon his wife except to perform the kindly duty of a good husband. That these facts, as to the purchase being for the wife, could not be proven by the husband, is solely because of his incompetency as a witness in her behalf, and not because of the incompetency of the facts proven. When a third party is found who is competent as a witness, and the facts within his knowledge are competent, it would be a novel proposition to exclude same on the ground of the husband's incompetency to testify.

Objection is also made to permitting plaintiff's son to testify that his mother owned this property and that same was in her complete control and possession after it was purchased. The objection is that the answers are mere conclusions of the witness and usurp the province of the jury. A number of cases are cited to the proposition that, when the title of goods is involved, a witness should not be allowed to state which party was the owner or who had control and possession. 17 Cyc. 220; Kendall Co. v. Bain, 46 Mo. App. 581; Muff v. Railroad, 22 Mo. App. 584. That there are exceptions to the rule just stated will be seen by reference to the above authorities. Thus it is stated in 17 Cyc. 223, that where the conclusion offered, although to a certain extent resting on the application of legal principles, is in the main a mere statement of fact, the witness will be allowed to state it. And in a footnote, citing many cases, the rule is stated to be:

"Where the fact of ownership is stated, not as a question of legal title, but as a short method of stating a fact collaterally important and indicative of the co-ordinated class of acts, residence, exercise of control, etc., which usually attend ownership, a witness may state that he, or another, owns certain property, real or personal. In an action for the conversion of property, witnesses who are personally familiar with the facts on which the ownership of such property is based can testify directly to the ownership of the same, as a fact, although the rule is otherwise where the facts constituting ownership are complex, or are not within the knowledge of the witnesses, so that the answer as to ownership involves the opinion or conclusion of the witnesses. This is equally true, although the jury may have ultimately to pass on the question."

In the Kendall Case, supra, the court held that the question of possession of personal property being in one person or another is a mixed question of law and fact. It would seem logical that, where the legal part predominates, then the law must be settled by the court, and a witness should not be allowed to express an opinion on such question, one "on which the opinion of the witness does not throw the least light." The court there said, however, that such evidence is competent when it relates to the facts rather than the law and complies with these tests:

"First, that the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time; and, second, that the facts upon which the witness is called to express an opinion are such as men in general are capable of comprehending and understanding."

The Muff Case, supra, states the same general rule and exceptions, though the question there before the court was quite different than that of ownership or possession. The rule in this regard is stated in Heman Const. Co. v. O'Brien, 81 Mo. App. 639, 641, as follows:

"The general rule is that a witness must state facts, and not his opinions or conclusion, but there are exceptions to the rule. If the facts and circumstances connected with the ultimate fact to be proved cannot be definitely and intelligibly stated so as to enable any one, except upon personal inspection, to form an accurate opinion, a witness who has had the means of personal observation may give his opinion. Eyerman v. Sheehan, 52 Mo. 221."

Kendall v. Bain, supra, is one of the cases cited. In McMillan v. Schweitzer, 87 Mo. 402, 405, the court said:

"These witnesses state in general terms without giving the details that defendant put Pettingill in possession of the logs. It is better for the witnesses, where the possession is controverted, to state the facts, but no effort was made here, by cross-examination or otherwise, to have this done. The judgment will not be reversed because of the admission of such evidence, where no effort is made by the opposing party to have the particular facts detailed."

In the present case this witness, in addition to and in support of his statement that his mother owned and had possession and control of this carriage, said that she paid the man taking care of the carriage; that when any member of the family wanted to use it they always got permission of the mother; that at one time when an outside party desired to use it the father asked the mother for such permission; that the father never exercised any rights of ownership or control over it. Had defendant desired, he could have cross-examined this witness in greater detail as to the facts relating to the possession and control. Under these facts we decline to reverse the case on this ground.

Nor do we think the case should be reversed for want of any evidence as to value sufficient to support the verdict. The plaintiff sued for $1,300, basing same on the value of the carriage when new. The verdict is for $200. The jury were...