Carberry v. Worrell ex rel. Burns

68 Miss. 573

• Court: Mississippi Supreme Court
• Decided: April 15, 1891
• Status: Published

Opinion

Cooper, J.,

delivered tbe opinion of the court.

The defendants, Carberry & Casey, caused an execution, issued upon a judgment recovered by them against one O’Shea, to be levied upon a stock of goods claimed by Miss Burns, the usee in his suit, and the same was sold. A doubt having arisen as to the ownership of the goods, the sheriff demanded and received a bond of indemnity under the statute, and it is upon this bond that this suit is brought.

The business in which the stock of goods seized was used, unquestionably at one time belonged to O’Shea, but, before the rendition of the judgment of Cai’berry & Casey (and so far as the record shows before the debt which was the foundation of that judgment was contracted),.O’Shea had sold out.his entire stock to the ’Vicksburg Liquor & Tobacco Company, which company sold the same to Miss Burns.

At the time the goods were seized, under execution, Miss Burns was in California, where she had gone on account of ill health. She had left a power of attorney with one McIntyre, who testified that he had employed O’Shea, the former owner of the store, and the judgment debtor, as clerk for Miss Burns, and that O’Shea was so acting at the time of the levy of the execution. The defendants’ contention is that O’Shea Avas in possession of the store, apparently as owner, and was transacting business in his own name, and that there was not any “ sign” displayed about the premises indicating who the true owner was, by reason of which the goods were subject to the claims of his creditors under § 1300 of the code.

When the case was called for trial, the defendants applied for a continuance because of the absence of two witnesses, Joe Wiley and Joe Mallett. The plaintiff admitted that the witness Wiley would, if present, testify to the facts set out in the application for a continuance, but resisted the application in so far as it was based upon the absence of the witness Mallett, on the ground that the whereabouts of Mallett were unknown, and it was improbable that his attendance could be secured at any subsequent term of the court. On this objection, evidence was submitted to the court, tending strongly to show that Mallett was a transient person, without home, relatives, business or ties of any sort in this state, and that he had not been seen here for months before the hearing. The plaintiff, on this examination, put the defendant who had sworn to the application for a continuance and the attorney who had supplied the information upon which it was based, upon the stand as witnessses, and they admitted that they knew nothing of the then whereabouts of the absent witness, and had no ground for believing that his attendance could be secured at any subsequent time. Under these circumstances the court rightly refused to grant the continuance. There urns no probability that a different condition would exist at another time, that the attendance of the witness or his deposition could be secured.

The assignments of error most sti’ongly urged by appellants .relate to the alleged insufficiency of the evidence of the value of the goods seized and sold, and to the action of the court in granting certain instructions for the plaintiff and in modifying those prayed by defendants. We examine these in their order.

To prove value, the plaintiff introduced the return of the sheriff in so far as it showed what goods had been seized, but not as to the value noted by the officer in his return. She then introduced an inventory, written in a book by certain agents of the plaintiff at the time of the levy of the writ, which inventory the defendants admitted contained a correct enumeration of the articles levied upon under the judgment-.. Opposite each item in this inventory the agents of the plaintiff by whom it was made had noted their valuation of it. The persons by whom this inventory had been made had both died before the trial, and in introducing the inventory and in instructions asked by her, the plaintiff restricted the jury from considering as evidence the notations of value made by the deceased persons. To establish such values, she introduced three witnesses, one a grocer, one a dealer in hardware, and one a dealer in dry goods. These witnesses were shown the inventory and requested to look over the items appearing thereon and the valuation noted opposite thereto, and to indicate to the jury what specific valuations they approved or disapproved as correct or incorrect. The hardware man indicated the valuations approved by him by noting opposite the item a circle, thus O; the grocer indicated his approval by checking opposite the item a cross check mark, thus X; the dry-goods man for the same purpose used a V check mark.

The contention of the defendants is that these witnesses were introduced as experts, and being so only in their respective lines, any evidence given by either touching the values of articles not of the class as to which he was an expert, was incompetent. In other words, that the grocer could not testify as to the value of calico; the hardware man could not speak of the value of sugar, nor the dry-goods dealer of that of a knife or a chain.

The error into which counsel have fallen is apparent. It is that of dealing with these witnesses, who were testifying in reference to matters of common and almost universal knowledge, as technical experts in an abstruse science. Unless the jurors who deliberated upon the case were exceptionally fortunate men, we doubt not that they had spent much of their substance in acquiring a practical knowledge of the value of hardware, dry goods, groceries, and miscellaneous articles, such as were seized by the sheriff under the execution; and each would probably have been found sufficiently informed to speak as a witness, though none of them may have been an “ expert” in the sense in which counsel use that term. A very large majority of men are experts in reference to the common affairs of life. The items on the inventory, valued by these witnesses, exceeded in the aggregate the sum found by the jury for the plaintiff’s damages; and, in our opinion, the verdict is as to the value of the goods seized abundantly supported by the evidence in the cause, which evidence consisted not solely of the testimony of these witnesses, but also in part of the original invoices of the goods when bought by the plaintiff.

In reference to the action of the court upon the instructions, it is only necessary to say that as applied to the facts of this case the defendants have no just cause of complaint. The fact of the sale by O’Shea to the Liquor & Tobacco Company, and the sale by this company to Miss Burns are not controverted by the defendants, save by the suggestion that the sale by O’Shea was in fraud of his creditors, and since it does not appear that the appellants, Carberry & Casey, were at that time creditors to him, they are not permitted to raise that objection to its validity. Though the court may not charge upon the weight of evidence, it is not error to assume as true a fact which is fully established, and as to which there is no controversy. Lamar v. Williams, 39 Miss. 342; Heirn v. McCaughan, Ib. 17.

It is not clear that, by the 4th instruction, the court assumed as a fact that the plaintiff through her agent employed O’Shea as her clerk, and put him in her store to sell her goods. The purport of the instruction was to inform the jury that the goods of a principal did not become subjected to the debts of a mere clerk under the operation of § 1300 of the code, and this is a correct announcement of the law. It is impossible, we think, that this instruction could have been accepted by the jury, as the expression of opinion by the court of the facts upon which the rule announced was predicated.

The 7th instruction of the plaintiff is subject to verbal criticism, in that it suggests that O’Shea must have conducted the business “from the time he took possession from McIntyre, until the levy” to subject the property to liability for his debts. If there appeared anything in evidence tending to show a different condition of things at any period of this intervening time, this error would be fatal to the judgment secured by the plaintiff. But if the jury should have found that at any time O’Shea was so conducting the business as to subject the goods used therein to liability to his debts, it is manifest from the whole evidence, that it also would have found that such transaction of the business was “ from the time he went in possession under employment of McIntyre up to the time of the levy.” It is to be noted also that by instructions for defendants the jury was informed that if “after” Miss Burns’ purchase, O’Shea conducted the business as his own, the property seized was subject to his debts. The error evidently sprang from inadvertence, for the court properly instructed when asked by the defendants that conducting the business after the purchase by Miss Burns, rendered the goods liable to be seized by his creditors. The error was therefore harmless and immaterial.

We are not to be understood as approving the instructions secured by the defendants, in so far as they announce that the goods were subject to the debts of O’Shea if, as clerk, he conducted the business for Miss Burns. This is not the law, as repeatedly announced. To subject the goods to the debts of one other than the owner, that other must have “transacted the business in his own name.” Code, § 1300. Affirmed.

Counsel for appellant filed the following suggestion of error:

1. It was not claimed that the witnesses, as to the value of the goods, were “technical experts in an abstruse science;” but that, as their testimony consisted largely of opinion evidence, their mere opinions were valueless unless based upon knowledge of the subject to which the opinions related. 1 Wharton Evidence, § 447.

But it is said by the court that each of the jurors might have estimated the value of the stock from his experience. If this is true, their observation must have taught them that there were various qualities, conditions, classes, and prices, of every sort of merchandise; that its values were fluctuating; and, that, unless the jurors were cognizant of the intrinsic properties of the thing, they were incapable of a just estimate. If a verdict can be sustained, because a hundred items appear upon the inventory, about the value of which nobody appears to have had any knowledge, it seems useless to have witnesses. And if juries are not bound by the testimony of skilled experts in science, why should they be “ bound” by the testimony of witnesses who speak on matters of common knowledge of which the jurors can judge as well as they ?

We ask the court’s attention to the witnesses, Lamkin and Butherford; to note their doubts and perplexity — and finally their frank admissions that, without knowing the class and qualities of the goods, their estimates, for all practical purposes, were worthless. On this point, see 7th Am. & Eng. Enc. L. p. 512.

2. The court assumes as a fact that these witnesses “ testified as to the value of the articles as to which they were not experts.” This is error in fact. The jury were instructed for the plaintiff, “not to consider any of the items in the book introduced by plaintiff which were not checked off by some one of the witnesses who testified as to the value of the goods.”

The witness Emmich stated that he had “ examined the inventory for the purpose of ascertaining Avhether the groceries put down in it had the correct prices attached;” that he had been “ in the grocery business for eight years, and should be familiar with the price of groceries; that only the V check marks which pertained to groceries were his.”

So the witness Butherford stated that the prices on the inventory were correct where attached to dry goods, by which he said he meant articles usually kept and sold in dry goods stores.

And the witness Lamkin swore that he was only called upon to testify to and examine “ those items which pertained to our line” (hardware).

Thus it is apparent that these witnesses avowedly did not testify, nor attempt to testify, to any other goods than those with which they were specially familiar. And from this it follows.that every item on the inventory not belonging to one of these three kinds of goods, or which bore the check mark of another witness than the proper one, was not before the jury as evidence, and that if included in the verdict, the latter is by so much excessive. "We do not contend that these witnesses should not have testified to the value of any items other than those with which they were familiar; but that in fact they did not do so, and expressly limited their testimony to such goods only as they were in the habit of dealing with, and had “ checked” accordingly. It is apparent that a large number of the V checked items are not groceries, and as the grocer only checked groceries with that mark, the items not groceries, but checked with that mark, were not checked by him, and were improperly before the jury.

"Who made these bastard check marks is not clearly shown. If made without authority, surely they were not in evidence; and if the witnesses disclaimed them, as they did, surely the same result would follow. Had it not been for the admission of the inventory and the plaintiff’s 4th instruction, it is impossible that the jury should have regarded them.

But it is said that “ the verdict is abundantly supported by the evidence, which consisted not solely of the testimony of these witnesses, but also in part of the original invoices of the goods.” The invoices were not introduced in evidence to prove value. This will be seen by plaintiff’s 6th instruction. In addition to this, it is not shown that the goods covered by the invoices were identical with those seized by the sheriff. We think it is manifest that this court has enlarged the scope of the plaintiff’s case as presented in the court below, and committed a grave error in treating the invoices as evidence of value.

3. If Joe Wiley is to be believed, the business wras conducted in 1888 and 1889 by O’Shea — said Burns being only a housekeeper; that during said years he bought and sold goods in his own name and on his own account, and acted as if he was sole owner of the business so carried on by him. Whether this was true or not was a vital issue, because it contradicted the evidence that O’Shea sold to the Vicksburg Liquor ■& Tobacco Co., and it to Burns. It was therefore error for the court below to assume these sales as established facts, because the evidence as to them was contradicted by Wiley. It should have reached the jury unaffected by any expression of opinion from the court.

Reply to suggestion of error.

Counsel, and not the court, are mistaken as to the matters of fact upon which error is suggested.

Upon pages 105 and 106 of the record, it appears that the invoices referred to in the opinion were introduced and read in evidence, and, in order to save expense in making record of the same, it was agreed that the originals should be brought to this court, which was done. The agreement of counsel in express terms is that these invoices “ amount in the aggregate to $2744.94.” Record, page 106, line 7 from top.

So, too, counsel are mistaken in saying in their suggestion of error: “ It is apparent that a large number of the V checked items are not groceries, and as the grocer only checked groceries with that mark, the items not groceries, but checked with that mark, were not checked by him, and were improperly before the jury.”

On re-direct examination the attention of Emrnich (the witness referred to) was specifically called to one check mark opposite the item of lemon sugar, and testified that this mark was on the book when he got it, and, being requested, examined the inventory, and having done so replied to a question by plaintiff’s counsel that he saw no other item checked with that mark except those he himself had checked. Becord, page 132, first five lines. Counsel’s contention that it devolved upon the plaintiff to show the precise quantity and character of each and every article in the stock of goods seized and sold by the judgment creditors as a preliminary to the examination of the witness as to value, would enable the trespasser to escape liability, because of the very wrong he perpetrates. By selling the goods the judgment creditors put it beyond the power of the plaintiff to exhibit them to her witnesses. In this condition of things, she did the best she could by proving the general character of the stock and the average value of the articles composing such stocks. This was sufficiently specific as against the defendants who should have proved, if they thought it important, that the goods seized were not an average of the class to which they were assigned by the plaintiff’s evidence.

Denied.