Woods v. Latta
| Citation | 88 P. 402,35 Mont. 9 |
| Parties | WOODS v. LATTA. |
| Decision Date | 18 January 1907 |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.
Action by Lizzie Woods against W. C. Latta. Judgment for plaintiff. Defendant appeals. Reversed and remanded.
John A Luce, for appellant.
Hartman & Hartman, for respondent.
This is an action of replevin, or claim and delivery, commenced in the district court of Gallatin county on August 19, 1905. By her complaint the plaintiff claimed to be the owner and entitled to the possession of one diamond stud of the value of $250, one diamond ring of the value of $250, and one pair of diamond cuff buttons of the value of $100. In addition to the usual delivery prayer in actions of this nature, the plaintiff asked damages in the sum of $200 for the detention of said property by the defendant. The defendant by his answer admitted the alleged value of the stud and ring, but denied that the cuff buttons were of any greater value than $50. He denied the ownership of the plaintiff as to all of said articles, and alleged that on the 28th day of May, 1898 he became the owner and was in the possession of said ring and stud, and had owned and possessed the same continuously since; that on the 25th day of December, 1903, he became and ever since has been the owner, in possession, and entitled to the possession of said cuff buttons. Defendant further averred that plaintiff's alleged cause of action to recover the ring and stud is barred by the provisions of the third subdivision of section 524 of the Code of Civil Procedure, as amended, and as contained in section 1 of an act of the legislative assembly, entitled "An act to amend sections 513, 514 and 524 of the Code of Civil Procedure, and to repeal an act approved March 11, 1901 [Laws 1901, p. 157] relating to limitations of actions," which act was approved March 9, 1903 (Laws 1903, p. 292).
The testimony of the plaintiff tended to show that she purchased the diamond ring and diamond stud of one Lytle, in St. Paul, Minn., in April, 1898, at an agreed price of $200; that she paid $25 on the purchase price and had the articles expressed to herself at Bozeman, Mont., C. O. D., $175, the balance of purchase price; that she and defendant were living together at the time; and that she gave him the money to take them from the express office, which he did, signing her name to the receipt book. She says she purchased the jewelry for herself, for her own use, and she thinks she paid for the same with her own money. She testifies that defendant borrowed the articles and wore them; that she let him have them for the purpose of wearing them. She denies that she ever presented them to him or gave them to him as his own. She then says: The testimony shows that plaintiff purchased the cuff buttons on December 24, 1902, of H. A. Pease, a merchant at Bozeman, for $50, and that diamonds have increased in value since that time over 50 per cent.
The evidence on the part of the defendant was to the effect that plaintiff purchased the diamond ring and stud in St. Paul for him, acting for him, pursuant to a promise she had made to buy him some diamonds if she could get a good bargain; that upon her return to Bozeman she informed him as to what she had done, and told him to go to the express office and get the articles; that he took his own money, paid the express charges and the remainder of the purchase price, $176.90 in all, signed plaintiff's name to the express book, received the ring and stud, and has had them in his possession ever since, claiming to be the owner thereof. He says that during all of this time plaintiff knew of his claim of ownership; that she first knew it on the day the property was taken from the express office. Defendant claimed the sleeve buttons as a Christmas (1903) gift from the plaintiff, and testified that he had them in his possession ever since the date of gift. He was corroborated in parts of his testimony, and plaintiff was contradicted by some of defendant's witnesses. The jury returned the following verdict: Upon the rendition of said verdict plaintiff voluntarily remitted the $500 damages awarded thereby, and the court thereafter entered judgment on said verdict for the plaintiff, adjudging her to be the owner and entitled to the possession of the ring and stud of the value of $250 each, and that she have and recover the same and the possession thereof, or, in case a delivery could not be had, that she recover from the defendant the respective values thereof as found by the jury, together with her costs. From said judgment, and from an order denying his motion for a new trial, the defendant appeals to this court.
Appellant's first contention is that the evidence is insufficient to justify the verdict. The testimony is conflicting, and, as it is presented to us, fairly susceptible of a construction favorable to either party. The verdict cannot be disturbed for that reason.
In his charge to the jury the trial judge gave the following instruction: The appellant complains of this instruction as being erroneous. By instruction No. 10 the court had correctly stated the law as to the burden of proof in the case, as follows: It will be observed that the court, in instruction No. 12, told the jury that, if they found by a fair preponderance of the evidence that plaintiff was at any time the owner of said property, then it would devolve upon defendant to show by a preponderance of evidence, either (1) that he had purchased the property from her, or (2) had acquired the same by gift. In other words, the jury were told that the burden of proof shifted from the plaintiff to the defendant in case they found that she ever owned the property. We think the court erred in giving this instruction. It ignores the question as to who was entitled to the possession of said property, and is in conflict with the rule laid down by this court in Potter v. Lohse, 31 Mont. 98, 77 P. 419. It tells the jury that, if plaintiff had proved that she was ever the owner of the property, then the defendant must prove his title by a preponderance of evidence, and, in addition to that, limits his source of title to purchase or gift from the plaintiff. The defendant did not claim any of these articles by purchase from plaintiff, and only the cuff buttons by gift; yet the court told the jury, as to all the articles, that his title could only be acquired in those two ways, and that he must prove it by a preponderance of the evidence. In a case like the one under consideration, the burden is upon the plaintiff to prove that she was entitled to the possession of the property at the time of the commencement of the action, and the mere fact that she may at one time have been the owner of the property does not change the burden of proof. Gallick v. Bordeaux, 31 Mont. 328, 78 P. 583; Tarbox v. Steamboat Co., 50 Me. 345; Scott v. Wood, 81 Cal. 398, 22 P. 871; Rupp v. Sarpy County (Neb.) 98 N.W. 1042. In cases involving the ownership and right of possession of property alleged, by either party, to have been acquired in different ways and by separate transactions, the trial court should segregate the issues and give the jury appropriate instructions as to each branch of the case.
Appellant also complains of instruction No. 13, which is as follows "If you believe from the evidence that the plaintiff and defendant were living together, and that the defendant came into possession of the property in suit, or any thereof, by reason of such relation and living together, and that he so obtained possession thereof in no...
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