Flanigan v. Flanigan's Administratrix , 19 W.N.C. 565 ( 1887 )

Mr. Justice Trunkey

delivered the opinion of the court March 21st, 1887.

The first and second assignments of error must be sustained for the reason that the testimony was irrelevant. That Mrs. Flanigan kindly treated her husband while the]r lived together had nothing- to do with the issue. The testimony of Mrs. Deal was inadmissible to contradict Kate Flanigan, if that was the purpose for which it was offered, for Kate Flanigan testified to what had occured at her father’s house, and Mrs. Deal to what occurred at another time and place. The letters showing that the widow of- Patrick Flanigan demanded his body, which was refused her, were written after the alleged conversion of the goods. Such testimony as is set out in these assignments might raise indignation in the minds of the jurors and enlarge punitive damages; but the facts not having occurred at the time of the alleged wrongful taking of the goods, were impertinent.

The third assignment must also be sustained. Patrick Flanigan and his furniture were taken to his father’s house some days before Patrick’s death. A daughter of the defendant testified that Patrick gave the furniture to the defendant, saying, “ Father, I give you all my furniture to pay all my expenses.” She said this was on Wednesday, and Patrick died on the following Sunday. The learned judge of the common pleas disbelieved the witness, and did not see how the jury could believe her; but it was for the jury to determine her credibility, and whether Patrick gave the furniture to his father. If he did, the act of taking possession' by the father was settled in the lifetime of the son. From the testimony the jury could well have found that the goods were taken on the same day that Patrick went to the defendant’s house, and that Patrick was present when his goods were removed from his own dwelling. In that case, in absence of evidence to the contrary, the presumption is, that Patrick went of his own will, and assented to the moving of the furniture; not that the father’s act at the start was wrongful.

Saxon testified that he hauled the furniture to Thomas Flanigan’s house. It appears in the testimony set out in the bill of exceptions, that Saxon was asked if he did not say that he had been employed by the defendant, and he answered : “ I do not remember. Mr. Patrick Flanigan employed me to take the furniture away.” Were this a mistake, and even if the defendant had employed Saxon, the other evidence was such that the jury ought not to have been told: “ The defendant forcibly carried away property which he had no right to take.”

Did Patrick give the furniture to the defendant? We think there was sufficient evidence to require submission of that question to the jury. And if submitted, it should not be fogged with narrations of family difficulties which have no connection with the alleged act which is the foundation of this suit. The issue involves no extended inquiry into the conduct of the parties toward each other either before or after the alleged conversion.

Judgment reversed, and venire fads de novo awarded.