Company A, First Regiment v. Hughes ( 1922 )

Birdzell, Ch. J.

This is an appeal from a judgment for the plaintiff in an action for conversion. The. case was tried in the district court of Burleigh county, before a jury, and resulted in a verdict of $6,000, plus interest from October 1, 1917, at 6 per cent. Upon this verdict judgment was entered.

The plaintiff is a civil corporation, organized in 1906 under the laws of this state, § 1425a, Rev. Codes 1899, for the purpose, among others, of maintaining an armory for Company A, First Regiment, North Dakota National Guard, as a training school. The articles provide that the corporation shall be managed by a board of directors of five members, one of whom shall be the captain of Company A, who shall be ex officio president of the board, all being members of the company in good standing, who shall hold office for a term of one year, and until their successors are elected and qualified under such by-laws and rales as may be adopted by the members of the corporation.

In March, 1917, Company A was called into Federal service as a part of the Second Battalion of the North Dakota National Guard, and assigned to guard duty at Camp Frazier, near the Missouri river railroad bridge at Bismarck. July 1st, 1917, this battalion was relieved of guard duty and mobilized at Fort Lincoln, near Bismarck, Company A being under the command of Captain J. IV. Murphy. Soon thereafter, the Second Regiment of North Dakota National Guards was organized, Company I and the Headquarters Company of this Regiment being recruited in Bismarck, and placed under the command of Captains A. B. Welch and II. T. Murphy, respectively. It seems that the First Regiment entrained for Camp Greene, North Carolina, on September 29, 1917, and the Second Regiment, October 1, 1917. Shortly prior to the departure of the First Regiment, according to his contention herein, the defendant had purchased some of the property belonging to the plaintiff, through negotiations with Captain John W. Murphy, and by an instrument, or letter, dated September 29, 1917, it is contended that authority was conferred upon the defendant to take full charge of the armory building on October 1st, on behalf of plaintiff corporation, until the captain or his successor should return to Bismarck. On or about August 5, 1918, Captain J. W. Murphy returned to Bismarck, where he died sometime later. According to the defendant’s contention he turned back to Captain Murphy, upon the latter’s return, the property which he had not purchased.

It appears, however, that prior to the departure of Company A, and at about the time the defendant obtained custody of the plaintiff’s building and contents, the armory contained the following equipment (the numbers of some of the articles being indefinite) : Steel lockers, steam boiler, a large number of pairs of roller skates, a large number of chairs, a roll top desk, a piano, punching bag and rack, horizontal bar, basket ball frames, ladies’ dresser, a rug, two rocking chairs, hot water heater, supply tank, cooking ranges, wall mirrors, gymnasium horse, office table, kitchen chairs, and kitchen table; and that upon the return of the company from military service, all, or practically all, of this material was gone. Hence this action.

It is first argued that the court erred in not directing a verdict for the defendant, on the ground that there was no substantial evidence on which a jury could find that the defendant had converted the plaintiff’s property, in that there was not shown to have been any evidence of a tortious taking or any intent to convert the property; that the testimony, when construed most strongly against the defendant, shows no more than negligence in the care of the property, — negligence in the sense of nonfeasance, rather than misfeasance; that there was no demand for the property, and no unlawful detention. We are of the opinion that no error Avas committed in the denial of the defendant’s motion for a directed verdict. There is affirmative evidence in the record to the effect that the defendant, in order to regain possession of the building from one O’Connor, to whom he had leased it, paid him a bonus in cash, and authorized him to take from the building about seventy chairs and a piano. The defendant disputed this, but lie' testified that he made a deal with 'Captain J. W. Murphy, whereby he purchased the lockers for the Beulah Coal Mining Company, supposing there were a hundred of them, for $180, but that there were only, in fact, some forty-seven or forty-eight lockers; that the men who took the lockers for the mining company said that they wanted the water tank also, and he, the defendant, told them to go ahead and take it, but that he hadn’t seen Murphy about the tank prior to that time. If it be assumed, therefore, though we do not so decide, that Oaptain J. W. Murphy had authority to dispose of plaintiff’s personal property, obviously, this authority ivas not, under the evidence in this case, exercised further than to dispose of the lockers to the defendant. As the defendant himself has testified to the unauthorized taking of the water tank, and as other witnesses for the plaintiff have testified to the taking and disposal of other property under the defendant’s direction, the evidence is clearly sufficient, in our opinion, to support a finding of conversion. In as much as the same evidence goes to establish an original tortious taking, it is not essential, under well settled legal principles, to make or prove a demand for a return.

Error is assigned upon rulings of tbe trial court, denying motions .to strike out tbe testimony of tbe witnesses Captain Welch and Langley upon tbe question of value. It is shown in support of these assignments that tbe verdict of the jury, covering as it does practically tbe entire amount claimed by tbe plaintiff, must necessarily have been based upon the testimony of these witnesses as to tbe value of tbe items covered by their testimony. Captain Welch testified, among other things, that tbe lockers were worth $20 each, tbe roller skates, $6 a pair, tbe punching bag and frame, $50, the rug, $65, tbe roll top desk, $75, etc. He had personally purchased some of the skates; they had all been used, some for one winter, and some for two; he thought that they had paid $6 a pair for the skates, and he testified that they were ■worth that much after one or two winter’s wear; that as to the remaining items, he was estimating the value and that his estimates were not necessarily based upon knowledge of values. lie disclaimed knowledge of the value of the boiler, for instance, but he nevertheless testified that it was worth $750. Again, on redirect examination, he stated that his values were based upon what he had paid “for these articles mostly,” but in the record it appears that, aside from the roller skates, he had made few, if any, purchases for the company.

The testimony of the witness Langley as. to value related principally to the piano. He stated that it was worth a thousand dollars; his knowledge of the value, according to his testimony, was gained from negotiations that he had had in Minneapolis, for the purchase of a new piano. Upon the record we think it clear that this witness was not shown to have been qualified to testify as to the value of the piano. Neither was the condition of the piano shown. In fact, one of the witnesses for the plaintiff, namely O’Connor, who took the piano from the armory, testified that it was. worth $85, and that while it was supposed to be, or to have been, an electric player piano, the player part was gone. Whether it disappeared before or after the alleged conversion does not appear.

The respondent insists that the testimony of the witnesses Welch and Langley, as to value, comes properly within the rule that an owner may testify to the value of his property, but we do not consider the testimony offered here to come within this rule. These witnesses were not the owners; neither does it appear, with the exception noted as to the skates, that either of them had purchased, or had otherwise become familiar with tbe value of tbe articles concerning wbicb tbe testimony was given. Tbeir interest was not any greater than that of any other member of tbe company, and if they might give testimony as to value on the sole ground of tbe interest they bad as members of tbe company, or even as directors, then any stockholder or director of an ordinary business corporation would be competent to testify as to tbe value of any article of property owned by tbe corporation, even though be might never have acquired any knowledge whatsoever concerning it. We are clearly of tbe opinion that such is not tbe law, and that tbe ordinary rule of testimonial knowledge applies to these witnesses. Tbe liberal rule that permits an owner to testify concerning tbe value of bis property is based upon a presumed familiarity with tbe subject, acquired from having purchased it or from having gained a knowledge in some other way, sufficient to qualify him. 13 Ene. Ev. 560. There is no presumption that a stockholder or a director of a corporation acquires such knowledge concerning the value of all tbe property owned by tbe corporation.

Eor tbe error thus affecting a substantial part of tbe recovery, tbe judgment must be reversed and tbe cause remanded for a new trial.

It is so ordered.

KobiNSON and ChristiaNSON, JJ., concur.