Krebs Hop Co. v. Taylor , 52 Or. 627 ( 1908 )

Mr. Justice Moore

delivered the opinion of the court.

A statement of the material testimony offered is deemed essential to an understanding of the action of the court in granting the nonsuit. M. Krebs declared upon oath: That on March 27, 1907, at Independence, the plaintiff was in possession of the property in question; that about 10 o’clock at night of that day, when he was ready to go home, he could not find his team; that soon thereafter he saw Taylor, and, having learned that he had taken the team, he asked him to get it, but the latter refused to comply with the request; and that the witness made no other demand for a return of the property. The testimony respecting the demand is corroborated by the sworn declarations of Frank Flakes, who was present when Krebs requested the marshal to return the team. L. Krebs testified that the reasonable value of the use of all the property described in the complaint was $4 a day. The court, upon objection of defendants’ counsel that no demand for a return of the property was necessary, excluded copies of letters mailed to the defendants, respectively, requesting them to return to the plaintiff the chattels specified. The court was then requested to grant a judgment of nonsuit on the ground that no testimony had been offered in support of the cause of action stated, sufficient to be submitted to the jury, and that the complaint alleged a joint taking by the defendants, while the testimony tended to show that Taylor alone seized the property. When this motion was interposed, plaintiff’s counsel stated that they elected to proceed' against Taylor and to dismiss the action as to Dickenson, whereupon the court announced that leave to do so would be granted, if the defendants’ counsel consented, but. upon their refusal the action was dismissed without prejudice.

The foregoing synopsis is believed to be a fair statement of all material parts of the bill of exceptions. The answer avers that the horses, harnessed to the buggy, were left hitched by Krebs, and that Taylor took the horses and delivered them to Dickenson; but that pleading makes no mention of the buggy or harness. Flakes stated upon oath that he remembered the night when Taylor took the Krebs Hop Co.’s team and buggy. His assertion is the only declaration tending to show that the city marshal seized the vehicle, and no testimony was offered in. relation to the harness. Although two reasons are stated in the motion for the nonsuit, only one of the grounds specified will be considered, to wit: Was the testimony given at the trial, together with the inferences and presumptions deducible therefrom, sufficient to authorize a submission of the case to the jury as tending to establish the cause of action stated in the complaint? If this inquiry is answered in the negative, it will be unnecessary to examine the question as to the right of plaintiff’s counsel to make the election indicated in their request.

1. At common law an action of replevin could be maintained only when the personal property sought to be recovered was wrongfully taken. In most states of the Union, however, the remedy has been extended by statute so as to include an unlawful detention, and the gist of the action is now regarded as the wrongful holding by a person of goods, chattels, etc., the right to the immediate possession of which is in another: Cobbey, Replevin (2 ed.) §12; Nunn v. Bird, 36 Or. 515 (59 Pac. 808).

2. The original taking by Taylor, therefore, ceases to be of much importance, except for the purpose of determining whether or not it was necessary to make a demand for the return of 'the property, as a condition precedent to the commencement of the action, for, if the seizing was unlawful, such a demand was not required: Surles v. Sweeney, 11 Or. 21 (4 Pac. 469) ; Moorhouse v. Donaca, 14 Or. 430 (13 Pac. 112).

3. The answer, not having denied the plaintiff’s ownership of the property, thereby admitted the averment in the complaint to that effect, thus leaving for trial only the issue of the right of possession. No direct testimony was offered tending to show who was entitled to the immediate possession of any part of the property, though M. Krebs stated upon oath that the team was taken from the plaintiff. The word' “team,” as employed in a statute exempting certain property from execution, has been held to mean one or more horses with their harness and the vehicle to which they are customarily attached for use: Brown v. Davis, 9 Hun. (N. Y.) 43. Notwithstanding the paucity of the testimony respecting the buggy and the harness, we shall treat the word “team” as used in the pleadings and by the witnesses as including the vehicle and the gear by which it was attached to, and propelled by, the horses.

4. A text-writer, in discussing the authority of a plaintiff to recover possession of specific chattels, says: “This right to have the property delivered to him, at the time of the commencement of his action, must, be unequivocally averred in his pleading and affirmatively proved on the trial, or he cannot recover”: Shinn, Replevin, § 441. In the absence of positive testimony on this subject, the question to be considered is reduced to the inquiry: Can the plaintiff’s right to the immediate possession of the property be inferred or presumed from the state of the pleadings or from the evidence?

5. It will be remembered that the answer avers that on March 27, 1907, when the property was taken, it was in the possession of M. Krebs, which allegation is admitted in the reply. He testified that at the time the horses, buggy, and harness were so seized, he was employed by the plaintiff, and that it then had possession of the property described in the complaint. It will thus be observed that his sworn declaration contradicts the admission adverted to, and as no motion was made to amend the reply, so as to conform to the testimony given, the fact thus admitted must control until overthrown by proof of plaintiff’s immediate right of possession. The ownership of personal property usually carries with it the right of possession, and in an action of replevin a general allegation of a right to the possession of the goods and chattels demanded is sufficiently maintained by evidence of ownership alone, when no special right to the possession of the property is shown by the adverse party: Cassel v. Western Stage Co. 12 Iowa, 47.

6. As against a mere intruder, a plaintiff in replevin may sustain his averment of a right to the immediate possession of the personal property in controversy by showing his prior possession thereof, and upon the production of such proof is entitled to recover as against a defendant who can show no better title, basing his remedy on the ground that the law presumes that things in the possession of a person are owned by him: Section 788, Subd. 11, B. & C. Comp.; Shinn, Replevin, §442. Though M. Krebs was employed by the plaintiff, at the time the property was seized, the pleadings having admitted that the horses, buggy, and harness were taken from his possession, the presumption arising from such admission is, that the right of possession remained in him, on the ground that a thing once proved to exist continues as long as is usual with things of that nature: Section 788, Subd. 33, B. & C. Comp. To overcome the deduction which the law thus expressly directs to be made from particular facts, the burden was imposed upon the plaintiff to show that it was entitled to the possession of the property when the action was instituted: Cobbey, Replevin (2 ed.) §979; Shinn, Replevin, § 441: Wheeler v. Vanderveer, 88 Hun. 233 (34 N. Y. Supp. 799) ; Lamotte v. Wisner, 51 Md. 543; Peterson v. Lodwick, 44 Neb. 771 (62 N. W. 1100). A plaintiff in replevin müst recover, if at all, on the strength,of his own claim, and a failure to prove his right to the immediate possession of the property, where the illegal detention is denied, is a failúre of proof upon a material point: Bardwell v. Stubbert, 17 Neb. 485 (23 N. W. 344).

[98 Pac. 494.] For appellant there was an oral argument by Mr. John A. Carson. For respondent there was an oral argument by Mr. Benjamin F. Jones.

The plaintiff having failed to offer such proof, no error was committed in granting the nonsuit, which judgment is affirmed. AFFIRMED.