Troxler v. . Bevill

Sea well, T. Under our liberal system of pleading the court is no stickler for form. The plaintiff is entitled to such relief as the facts set up in the complaint may warrant, consistent with the jurisdiction of the court in the particular matter. Bolich v. Ins. Co., 206 N. C., 144, 173 S. E., 320; McNeill v. Hodges, 105 N. C., 52, 11 S. E., 265; Knight v. Houghtalling, 85 N. C., 17. A fortiori, iñ those courts where written pleadings are not required the plaintiff is entitled to any appropriate relief upon the facts established, unless on the trial he has adopted and insisted upon a contrary theory of the case which might bind him in the appellate court. But the designated form of the action is important, sometimes controlling, as it indicates the character of the transaction out of which the right of action arises, and carries with it legal implications affecting both the course of the judicial investigation and the remedy available to plaintiff. In that sense form becomes substance. The able counsel for the plaintiff seemed uncertain as to whether they should insist that his cause of action rests in bailment or assumpsit for money “had and received.” The dilemma is one naturally arising from the fact that the subject of the controversy is a sum of money and the evidence available might have an aspect favorable to both views. But we fear it is not sufficient to establish either. While no pleadings were required in the municipal court of the city of Greensboro, where the case originated, it appears from the record that it was regarded as one of bailment, and we shall first consider it in that aspect. *643 Tbe burden was on the plaintiff to show the contract of bailment, whether express or implied, by competent evidence. Perry v. R. R., 171 N. C., 158, 88 S. E., 156; Nutt v. Davison, 54 Colo., 586, 131 P., 390. A substantial part of his embarrassment in this endeavor obviously arose from the fact that he was incompetent to testify as to any transaction or communication between himself and his deceased brother under C. S., 1795. As to this, the court cannot aid him, nor is it a circumstance to be considered in passing on the probative value of the evidence actually presented. ~We are ashed to draw such inferences as may be necessary to establish plaintiff’s case from evidence almost wholly circumstantial. This consists, substantially, of two pictures in the flat and the background against which they are placed. These show little more than the presence in intestate’s strong box, at the first witnessed opening in 1935, of an envelope inscribed with plaintiff’s name and showing a content in money of $285.00, and the similar presence, at the second witnessed opening in 1937 (after A. W. Troxler’s death), of an envelope marked “S. B. Troxler, $285.00,-” all in intestate’s handwriting. $60.00 It appears that at the first opening, property of S. R. Troxler was removed from the box. At the second opening, this defendant did not question the ownership of the $60.00 found in the box and tagged with plaintiff’s name. Plaintiff’s counsel draws the inference in their brief that A. W. Troxler was the “banker of the family” and had in keeping the money of his brother. We might concede that the circumstances point to an inference that intestate had in his possession the sums mentioned at the first and second witnessed openings of the safe and that it was money of the plaintiff. We might even concede that this gives rise to the inference of bailment, although there may be a split of authority here which we do not undertake at this time to reconcile. 6 Am. Jur., sec. 64, p. 191. But in the absence of any evidence or any presumption as to the nature and terms of the bailment or the intention of the parties, or a more complete history of the transactions between the parties, we are left to speculation with regard to further facts essential to plaintiff’s recovery. With as little as has been revealed to us with regard to the bailment, if it was a bailment, we cannot accept the suggested diminution in the contents of the envelope as raising an inference of conversion on the part of defendant’s intestate, or other negligent or tortious act resulting in liability for failure to return the original deposit intact. Plaintiff may be correct in his contention that intestate was “the banker of the family”; and this evidence points as strongly to withdrawal by the plaintiff and rebailment as it does to conversion by the *644 intestate. Of tbe two inferences, tbe law will make tbe inference of innocence. Tbis is ratber accentuated by tbe circumstance tbat as to $5.00 of tbe difference, at any rate, some transaction between tbe parties was supposed by plaintiff to relieve tbe intestate of liability to tbat extent. There was no demand by plaintiff and refusal by defendant’s intestate wbicb might have given rise to presumptions or might have enlightened tbe jury as to tbe relations and obligations between tbe two. Elon College v. Trust Co., 182 N. C., 298, 109 S. E., 6; Southern Railroad Co. v. Prescott, 240 U. S., 632, 60 L. ed., 836; Perry v. R. R., supra. Tbe demand by suit against tbe administrator after A. W. Troxler’s death, in tbe absence of more substantial proof concerning tbe bailment than tbe evidence affords, is not sufficient to raise such liability. With regard to tbe theory of assumpsit, we find a like infirmity of proof, in respects so similar tbat we consider detailed consideration •would lead only to repetition. Tbe demurrer to tbe evidence should have been sustained, and tbe judgment is Reversed.