Harris v. Rosenberg

Loomis, J. The motion presents as grounds for a new trial four questions made in the court below, which we will very briefly consider. 1. . It seems that three persons were concerned in the alleged trespass, which consisted in selecting from the goods of the plaintiff in his store a large number of small articles, and carrying them away in two separate parcels. While two of the trespassers were carrying away the first parcel to the house of one of them near by, they left Carrie Rosenberg, the other defendant, in the store selecting and putting up another package of goods to be ready on their return. They did return very soon, and together with said defendant, Carrie, took away the other package so selected by her. The evidence of the taking away of the last-mentioned package of goods was objected to by the defendants, as constituting a distinct trespass, only one trespass being alleged in the declaration. The court, very properly we think, disposed of this objection by finding that the two acts wore merely parts of one continuous transaction, and therefore admitted the evidence. 2. The evidence of the date of the notice of the assignment to Brocksieper, one of the trespassers, of a note which the plaintiff owed David Rosenberg (to recover-the amount of which, the defendants claimed to have taken the goods in question), and which evidence was offered and received for the sole purpose of fixing certain dates claimed to be material, and of testing the memory of witnesses, was, we think, admis [231] sible for that purpose, at least within the sound discretion of the court. If the dates to be shown were material and in dispute, they could be shown by the date of some other event not in dispute, upon the same principle that “the qualities of an object in dispute may be shown by comparison with the known qualities of some object not in dispute.” Isbell v. N. York & N. Haven R. R. Co., 25 Conn., 556. It docs not appear that the dates to be shown were not material, but on the contrary, as they were connected with the transaction in question, primó fade they were material. The same evidence was also called out by the plaintiff on the cross-examination of the defendants’ witness, for the purpose of fixing dates and of testing the memory and thereby affecting the credibility of the witness, and we think it was admissible for that purpose within the discretion of the court. 3. It appeared during the trial that the defendant Carrie Rosenberg was a minor, and that the other defendant was her father, but no guardian or next friend appeared for her in the causo, and no guardian ad litem was appointed by the court. The court therefore omitted to render any judgment against the minor. If this was error, it is an error apparent on the record, and will not avail the defendant on a motion for a new trial, as the point was not made on the trial in the court below. But it was no error that injured the defendant David Rosenberg. A judgment against Carrie, the infant, would have been erroneous, and had it been rendered, this court would only reverse it against her, leaving the judgment in full force against the adult co-trespasser, which would leave the case just where it now stands. The course taken by the court was, under the circumstances, the only proper one. Reeve’s Dom. Rel., p. 268; Wilford v. Grant, Kirby, 114. 4. The only remaining question is, whether the court properly held that the presumption as to the quantity and value of the goods taken was in favor of the plaintiff in case of doubt. The motion presents this point as follows: “ But the court being in doubt as aforesaid [that is, as to the quantity and [232] value of the goods taken,] held that the presumptions of law, so far as there were any, upon the questions of quantity and value, were in favor of the plaintiff and against the wrongdoer, and that in case of doubt the largest quantity and the highest value were to be regarded as the true ones, and applied this principle to the decision of the case.” This was an application to the facts of this case of the much used (if not abused) maxim, “ Omnia presumuntur contra spioliatorem” This maxim has often been a most effective instrument in the hands of justice to punish wrong-doers, and the highhanded outrage committed by the defendants as disclosed by the record, doubtless furnished a legitimate occasion for its use under proper limitations. It is possible that the brevity of the finding may not correctly represent the application, which the court made or intended to make of the principle. As we construe the finding, in connection with the fact that judgment was rendered for all the plaintiff demanded in his writ, the principle of presuming the highest value and the largest quantity does not seem to have been limited to the precise thing or things otherwise proved to have been taken. The maxim in question legitimately applies to tortious acts of withholding, suppressing, concealing, mutilating or fabricating evidence, or the instruments of evidence. 1 Greenl. Ev., 12th ed., § 37; Broom’s Legal Maxims, 425. When it is applied to a case like the present, it is upon the principle that where a party has the means in his power of rebutting and explaining the evidence against him and wrongfully withholds it, the omission furnishes a strong inference that he could make no answer to the opposing claim. One of the earliest cases illustrating the principle in its application to cases of the class now under consideration, is the leading case of Armory v. Delamirie, 1 Strange, 505, where a person found a jewel and took it to a goldsmith’s shop to inquire its value, who, having got the jewel into his possession, under pretence of weighing it, took out the stone, and on the finder’s refusing to take a small sum for it, returned to him the empty socket. An action of trover having been brought, Pratt, C. J., directed the jury that, unless the defendant produced the jewel and showed it not to be of the first [233] water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages. A proper application of the rule to the case at bar may be illustrated as follows:—If it was proved that the defendants took a piece of silk and the plaintiff claimed that it was of the best quality and highest price and contained so many yards, and the defendant, while denying the alleged quantity, quality and price, would not produce it in court or allow it to be examined and measured, it would furnish a very strong inference against him; but the fact of taking the silk would not of itself justify the court in presuming that he took the fur caps or other things mentioned in the declaration, and that they also were of the finest quality and highest price. The presumption we are considering is of course to be distinguished from one arising from opportunity to take the goods coupled with other circumstances calculated to fasten the guilt upon the defendants; as for instance, if certain goods were known to have been in the store just previous to the defendants’ entry and were found missing soon after, and no persons other than the defendants and those acting with them were known to have entered the store without permission or to have had opportunity to take the goods, the court might properly infer that the missing goods went off by the same hands that were proved to have taken a part. Again, we think the foundation which the court prescribed, on which it would raise the presumption in question, was too broad as it is stated. “If the court was in doubt upon the evidence as to quantity and value, then it applied the principle of the largest quantity and highest value.” The rule thus stated fails to discriminate, as it should, between cases where the doubt was occasioned by some act of the wrong-doer, and where it originated, as it might, from the fault, negligence or exaggerated claims of the plaintiff, or from other circumstances for which the defendants could not be justly held responsible. A new trial is advised. In this opinion the other judges concurred.