Wingler v. Miller
| Decision Date | 07 April 1943 |
| Docket Number | 242. |
| Citation | 25 S.E.2d 160,223 N.C. 15 |
| Parties | WINGLER et al. v. MILLER et al. |
| Court | North Carolina Supreme Court |
See also, 221 N.C. 137, 19 S.E.2d 247.
Civil action to recover the sum of $3,197.78 with interest from January 15, 1940, from A.R. Miller, individually, A.R. Miller and M.C. Wingler, administrators of the estate of N. Wingler and Harry Pearson and T.J. Pearson, sureties on the aforesaid administrators' bond.
N Wingler died intestate in Wilkes County, N.C., on the 31st day of December, 1939, leaving as his sole heirs at law and distributees, two sisters, the plaintiffs in this action Melvina Wingler and Minda C. Long.
On December 29th, 1939, N. Wingler was admitted as a patient to the Wilkes Hospital, in North Wilkesboro, N.C. At the time of his admission he was in a semi-conscious condition. He had on his person various sums of money, in many small packages and in at least three pocketbooks. The money was counted by the Chief Surgeon of the Hospital and amounted to $6,395.57. Thereafter it was turned over to the president of the Bank of North Wilkesboro, who deposited the same to the credit of N. Wingler on December 30th, 1939, in the aforesaid bank.
N. Wingler and A.R. Miller had been partners in a small mercantile business for sixteen years or more. Wingler & Miller had a savings account in the Bank of North Wilkesboro at the time of the death of N. Wingler in the amount of $1,318.08. N. Wingler had a personal savings account in the same bank at the time of his death in the amount of $1,308.71, he also carried a checking account in the Northwestern Bank of North Wilkesboro. The record does not disclose the amount on deposit in this checking account at the time of his death, neither does it disclose whether the account was carried in his name or in the name of the partnership.
A.R. Miller contends that no settlement was ever made between himself and N. Wingler and that the money found on the person of N. Wingler when he entered the hospital, belonged to the partnership of Wingler & Miller, and that he is entitled to one-half of said sum, towit, $3,197.78, being the amount in controversy in this action.
On January 15th, 1940, the aforesaid sum of $6,395.57 was equally divided between A.R. Miller and the estate of N. Wingler. The defendant A.R. Miller alleges and contends said division was made with the approval and consent of the plaintiffs, and alleges they are now estopped to maintain this action for the recovery thereof.
Plaintiffs allege and contend that by reason of fraudulent representations made by A.R. Miller to M.C. Wingler, his co-administrator, the aforesaid sum of $6,395.67 was divided as set forth above, without their knowledge or consent. Plaintiffs offered evidence tending to show that N. Wingler had carried money on his person in packages similar to those found on him at the time he entered the hospital, December 29th, 1939, for a great many years. Two witnesses for the plaintiffs testified that Mr. Wingler had boarded with them for nearly 16 years prior to his death, and when he came to board with them he carried "certain bags, packages or bulks of something on his person" and continued to do so through the years. They further testified the packages were on his person when he left for the hospital.
Prior to the submission of the case to the jury, counsel stipulated as follows:
The issue was answered in favor of plaintiffs, and from judgment entered thereon, the defendants appeal, assigning error.
J. Allie Hayes, of North Wilkesboro, and Ira T. Johnston, of Jefferson, for plaintiffs.
Trivette & Holshouser, of Boone, and John R. Jones, of North Wilkesboro, for defendants.
The stipulations entered into by counsel for plaintiffs and defendants limit our consideration to those exceptions and assignments of error bearing on the single issue submitted to the jury by consent, towit, "Was the fund found on the person of N. Wingler at the Wilkes Hospital the individual property of N. Wingler, as alleged in plaintiffs' complaint?" The question of fraud on the part of A.R. Miller, the alleged mutual settlement between Miller and the estate of N. Wingler, the liability of the bondsmen, the counterclaim of A.R. Miller, etc., discussed in appellants' brief, are eliminated from our consideration by the stipulations of counsel, in the following language: "That the parties waive the submitting of any other issue or issues arising on the pleadings."
Assignments of error numbers 15 and 33 are to the refusal of his Honor to sustain defendants' motions for judgment of nonsuit lodged at the close of plaintiffs' evidence and renewed at the close of all the evidence.
There is but little evidence, one way or the other, as to the ownership of the money found on the person of N. Wingler at the time he entered the hospital. The record, however, does disclose that N. Wingler worked for a lumber company for some time and operated a store for about sixteen years prior to his death; that from October 24th, 1924, until his last illness he boarded with Mr. and Mrs. Jim Wingler, who were not related to him. Mr. and Mrs. Wingler testified that when he came to board with them he carried certain bags, or packages, on his person and continued to do so through the years. They further testified the packages were on his person when he left for the hospital. This and other evidence tends to establish the fact that N. Wingler did carry a substantial sum of money on his person for many years prior to his death. The record further discloses that for many years he had maintained three bank accounts, a checking account in the Northwestern Bank of North Wilkesboro, a savings account in the name of Wingler & Miller and a savings account in his own name in the Bank of North Wilkesboro.
When the evidence in this case is taken in the light most favorable to the plaintiffs, it is sufficient to be submitted to the jury, since the plaintiffs are entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. C.S.§ 567; Edwards v. National Council, Junior Order, 220 N.C 41, 16 S.E.2d 466; Coltrain v. Atlantic Coast Line R. Co., 216 N.C. 263, 4 S.E.2d 853; Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601; Cromwell v. Logan, 196 N.C. 588, 146 S.E. 233; Brown v. Southern R. Co., 195 N.C. 699, 143 S.E. 536...
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