out of doors, looked up at the building, and saw "terrible smoke, but not so much blaze," coming out of the same place directly over the scaffolding where the painters had been working late in the afternoon, one of the witnesses who testified to the occurrence of the fire in the afternoon exclaiming, "The painters did it!" Before the fire could be extinguished by the city fire department it resulted in great damage to the house, destroying or greatly damaging by fire, soot or dripping water the furniture in the house. Employés of defendant's contractor denied that they started the fire and described the precautions they took as follows: "We had two buckets of water on the swinging stages, one bucket on each. We had two swinging stages up and two men were working on one and two on the other. They each had a bucket of water on their swinging stage and wet the woodwork all over, while we had the burners burning the paint off, so that it would not cause fire or anything. There were some old bags laying on the ground underneath where Walter Feaster and Joe McNespy were working, and some hot paint fell down on these bags and set them on fire, and Walter went down and got the water and put them out. They were on the cellar door. I will take an oath that I did not see any fire except on the cellar door. "Q. What, if any, fire was there on the scaffold that afternoon? A. When you scorch the paint, sometimes you get it hot and lay your burner down on the swing to put it out, and these burners were on this swing and Porter went to step across, and when he stepped across the torch caught his overalls on fire. That was the only fire that occurred there that afternoon." BOYCE, J., charged the jury in part: This is an action by Patrick Fahey against John B. Niles to recover damages to property alleged to have been occasioned by the negligence of the defendant. the lower stories was very greatly damaged by falling embers, soot and water. There are five counts in the declaration averring in substance the facts thus stated. [1-3] Negligence is the basis of this action.. Negligence is defined to be the want of ordinary care; that is, the want of such care as a reasonably prudent and careful person would exercise under all the circumstances. Negligence is never presumed; it must be proved, and the burden of proving the act of negligence relied upon, to the satisfaction of the jury, rests upon the plaintiff. The negligence of the servants of the defendant, if any there was, is imputed to the defendant. direct or circumstantial evidence, and be[4] Negligence may be proved either by direct or circumstantial evidence, and before you can find a verdict in favor of the plaintiff, it is necessary for you to be satisfied by a preponderance of the evidence that it was the negligence of the servants of the defendant, in the course of their employment for the defendant, which caused the fire and the resultant injury complained of. [5] Circumstantial evidence is where some facts being proved, another fact, the fact in issue, follows as a natural or very probable conclusion from the facts actually proved, so as readily to gain the assent of the mind from the mere probability of its having occurred. It is an inference of a fact from other facts proved. State v. Tyre, 6 Pennewill, 343, 357, 67 Atl. 199. [6] A person using dangerous instrumentalities, such as gasoline torches, for removing paint from a dwelling house, must exercise due and reasonable care to prevent setting the building on fire; and if such care is not used, and injury to property follows in consequence thereof, liability attaches for the results of the negligence. If you should find that the damage to the plaintiff's property was not in fact caused by the defendant or his servants, or that it was not caused by the negligent act of the defendant or his servants, or that the plaintiff suffered no damage as a result of the fire, then, of course, your verdict should be for the defendant. If, on the other hand, you are satisfied by a preponderance of the evidence that the plaintiff has sustained injury by reason of the damage or destruction of his property such as he claims, and that it was due to the negligence of the defendant or his servants as alleged, then your verdict should be for the plaintiff, and for such a sum as you find from the evidence the plaintiff has actually sustained by reason of the injury to or loss of his prop The plaintiff claims that his furniture and household goods were seriously damaged or destroyed by a fire on the 21st day of August, 1917, at his then place of restdence in this city. It is conceded that the defendant had previously purchased the house in which the plaintiff was residing; and also that the defendant, by and with the consent of the plaintiff, was having old paint burnt off the outside of the house by his employés, who, for the purpose of removing the paint, used gasoline torches. It is the claim of the plaintiff that these workmen negligently set fire to the cornice of the third story of the house and negligently failed to put the fire out, and that in consequence of their negligence, the third story of the house and the furniture therein were erty. destroyed by fire, and that the furniture in Verdict for plaintiff. (108 A.) (7 Boyce, 458) STATE V. GOLDENBERG. the defendant on the sixteenth day of September, 1918, conducted the business of a pawnbroker in Wilmington, and on that day (Court of General Sessions of Delaware, New received in pawn a coat and ring, at which Castle. Nov. 19, 1919.) time defendant asked and demanded of the person pawning them three per centum per 1. PAWNBROKERS AND MONEY LENDERS 11 month on the money loaned, and also an ad-STORAGE CHARGES NOT PART OF AUTHOR-ditional sum of three per centum per month IZED RATE OF "INTEREST.” Defendant, who in addition to demanding and receiving 3 per cent. per month on money advanced on pledged property, demanded and received 3 per cent. per month as storage charges, is not guilty of a violation of Acts Gen. Assem. April 10, 1919 (30 Del. Laws, c. 83), amending Code 1915, § 1203, as to pawnbrokers not receiving a greater rate of interest than 3 per cent. per month, "interest" not including "storage" when statute is strictly construed, as it must be, since it imposes a penalty. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interest.] 2. STATUTES 241(1)-PENAL PROVISIONS STRICTLY CONSTRUED. on the amount of the loan, as storage for said goods while in defendant's possession; and that afterwards defendant received a sum of money equalling three per centum per month of the money advanced on said pledged property, and a further sum of three per centum per month as storage on said property. Should the court be of opinion that the asking, demanding and receiving by defendant of said three per centum per month as interest and the said three per centum per month as storage constituted a greater rate of "interest" than three per centum per month, a verdict of guilty is to be entered, otherwise a verdict of not guilty. [1] The contention of the state is, that the Those parts of statute imposing a penalty rate of interest of three per centum per must be strictly construed. HEISEL, J. (delivering the opinion of the court). The defendant is indicted for violating section 1203 of the Code as amended by 30 Del. Laws, p. 195, and is charged in the several counts of the indictment with conducting the business of a pawnbroker and having asked, demanded or received a greater rate of interest than three per centum per month on a loan secured by a pledge of personal property. The question for the determination of the court arises upon a case stated, wherein it is agreed by the Attorney General and counsel, for the defendant, that month provided by the amendment to section 1203, included every legal charge that could be made for the loan of money under what is known as the Pawnbrokers Act, of which section 1203 is a part, and that any other or further charge for storage, or other service, in connection with such loan, no matter by what other term it may be designated, was included under the word "interest" as used in the amendment, and, therefore, in violation of the amendment. Counsel for defendant contends that the word "interest" has a well defined meaning which is generally understood, and that the part of the statute under consideration being penal, it cannot be construed to mean or include "storage." Section 1203 before amendment was as follows: "No person, corporation or firm so conducting the business of a pawnbroker shall ask, demand or receive a greater rate of interest than eight per centum per month on any loans secured by that where such loan is secured by pledge of pledge of personal property, provided, however, personal property requiring extra care to prevent injury or loss during disuse, such person, corporation or 'firm may charge such reasonable sum for storing and taking care of the same as such person, corporation or firm shall deem reasonable, not to exceed three per centum per month." The amendment repealed that section and provided: the business of a pawnbroker shall ask, demand "No person, corporation or firm so conducting or receive a greater rate of interest than three per centum per month on any loans secured by pledge of personal property." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The amendment to section 1203 not only reduced the rate of interest from eight to three per cent per month, but also repealed the provision allowing an additional charge of three per cent per month on the amount of the loan for storage or taking care of the property pledged. [2] The statute nowhere in terms, prohibits the pawnbroker from charging for storage of personal property in pledge during the time of the loan, and while, as we have said, we think the meaning and intent of the whole act is that no other or further charge should be asked, demanded or received, than the interest charge of three per cent per month, we are obliged to construe those parts of the statute for a violation of which a penalty is imposed, strictly, and not extend them by im Taking into consideration the objects of the whole statute relating to pawnbrokers and this amendment, we think the Legislature clearly intended that the three per cent per month interest provided in the amend-plication. ment should be the only charge asked, demanded or received by pawnbrokers for the loan of money under the statute; and that any other or further charge asked, demanded or received for storage, or taking care of the property pledged, would be contrary to the true intent and meaning of the statute. But does it necessarily follow, that one who asks, demands or receives such further charge for storage has violated the amendment, which provides only, that no greater rate of interest shall be asked, demanded or received, than three per cent per month, and thereby subject him to criminal prosecution and the penalty of fine and imprisonment? We think not. While the statute in question is for the regulation of pawnbrokers, and for the purpose of raising revenue, it is, nevertheless, also penal in some of its provisions, and such penal provisions should be construed with the strictness universally recognized by the rules of statutory construction when applied to penal statutes. We are, therefore, of opinion that while the defendant did violate the meaning and intent of the statute in question when he asked, demanded or received three per cent per month on the amount of the money loaned, for storage for the property pledged, in addition to three per cent per month interest on that amount, we cannot say, as a matter of law, that he is guilty of violating the provisions of the amendment, and by implication construe interest to mean storage when the effect of such construction would be to charge a crime. [3] The question of whether the charge asked, demanded or received above three per centum per month for interest is for interest, or for some other service is a question of fact, for the determination of a jury, and it is for a jury to decide whether the excess charge is in good faith, a charge for storage or for some other purpose than for interest, or whether it is only a subterfuge used to evade the restrictions of the statute. Let a verdict of not guilty be entered. (7 Boyce, 461) (108 A.) REYNOLDS v. DONAWAY, Sheriff. to certain articles replevied which were not levied upon. The plaintiff claimed that certain goods (Superior Court of Delaware. Sussex. Oct. 15, and chattels, levied upon by the defendant 1919.) 1. REPLEVIN 1-PURPOSE OF ACTION. Replevin is an action for possession of chattels taken or detained from the person entitled to their possession. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Replevin.] as sheriff of Sussex county under an execution upon a judgment obtained by the American Agricultural Chemical Company against the husband of the plaintiff, were owned by and belonged to her. The property was later replevied by the coroner of the county and delivered to the plaintiff. The plaintiff testified that some of the goods in question were purchased for her by her husband with her 2. REPLEVIN 8(4)—TITLE AND RIGHT TO money, and that the other goods were gifts POSSESSION OF PLAINTIFF. Replevin is founded on the general or special property of plaintiff in a chattel, and his consequent right to its immediate and exclusive possession. 3. REPLEVIN 8(4)-ISSUE OF PROPERTY. The issue of property in replevin is not whether it is that of plaintiff or defendant, but whether the property is in plaintiff, with a consequent right to immediate and exclusive pos session. 4. REPLEVIN 70-BURDEN OF PROOF OF PLAINTIFF. to her by persons other than her husband. The defendant claimed special property in the goods replevied, except that portion as to which he entered a disclaimer, they being seized on said execution as the property of the plaintiff's husband. The plaintiff requested the court to charge the jury upon the law as contained in the case of Taylor v. Plunkett, 4 Pennewill, 467, 56 Atl. 384. RICE, J. (charging the jury). This is an action of replevin, brought by Elizabeth Rey Plaintiff in replevin has the burden of prov-nolds, the plaintiff, against Joseph M. Donaing a property in the chattels of such character as to give right to their immediate and exclusive possession. 5. REPLEVIN 8(1)-WEAKNESS OF PLAINTIFF'S TITLE DEFENSE. way, sheriff of Sussex county, the defendant, to recover the possession of certain goods and chattels. The goods and chattels, the subject of this suit were by the coroner of this county taken from the possession of the Defendant in replevin may prevail on the defendant and placed in the possession of the weakness of plaintiff's title. plaintiff, where they now remain. 6. HUSBAND AND WIFE WIFE'S SEPARATE PROPERTY. 110-SOURCE OF Under Rev. Code 1915, § 3058, property acquired by a married woman from any source other than her husband is her sole and separate property. 7. REPLEVIN 103(3)-DAMAGES TO DEFEND ANT. If defendant in replevin does not ask for return of the goods, and verdict is for him, he should be awarded damages equal to their value. 8. REPLEVIN 82-DAMAGES TO PLAINTIFF. If finding is for plaintiff in replevin, the goods having been taken and placed in plaintiff's possession, verdict should be for plaintiff for nominal damages and costs. Action by Elizabeth Reynolds against Joseph M. Donaway, Sheriff. Verdict for plaintiff. BOYCE and RICE, JJ., sitting. James M. Tunnell, of Georgetown, for plaintiff. Woodburn Martin, of Georgetown, for defendant. At the beginning of the trial, a disclaimer was entered by counsel for the defendant as The plaintiff claims that some of the goods and chattels in question were purchased by her husband with her money for her, and that the other goods and chattels were gifts to her by some person other than her husband. For the other property taken under the writ of replevin the defendant makes no claim. The defendant, who, at the time of the issuance of the writ of replevin, was sheriff of this county, claims a special property in those articles replevied and to which a disclaimer has not been entered, by reason of the goods and chattels being seized on an execution upon a judgment obtained by the American Agricultural Chemical Company against B. W. Reynolds as the property of B. W. Reynolds, the husband of the plaintiff. The defendant claims damages in the amount of $260 with interest from the 23d day of April, 1918. [1-5] Replevin is a form of action which is employed to recover possession of personal chattels that have been unlawfully taken or detained from the person entitled to their possession. The action is founded on the general or special property of the plaintiff in a chattel and his consequent right to its immediate and exclusive possession. The issue of property in replevin is not whether the property in the chattel is that of the plaintiff For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes or the defendant, but whether the property is in the plaintiff or claimant in the action and whether the plaintiff as such has a consequent right to its immediate and exclusive possession regardless of the title and property of the defendant. It therefore devolves on the plaintiff in this case to prove to you by a preponderance or greater weight of the evidence that at the time this action was brought she had and retained a property in the title of the goods in controversy of such a character as to give her a right to their immediate and exclusive possession. The defendant, on the other hand, in order to prevail, is not required to rely upon the strength of his own title or property in the goods, but may prevail upon the weakness of the plaintiff's title. He may, if he choose, set up and establish property in himself or in another, in order thereby to disprove title or property in the plaintiff; and he may also show that the property was in the husband of the plaintiff and taken on execution as the property of the husband. The defendant acquired whatever right he had in the property as a result of the execution process issued against the husband, and, if the husband had property in the goods and chattels seized at the time of the levy, then the sheriff did have a special property in the goods and would be entitled to their possession. [6] At common law the personal property of the wife reduced to the husband's possession became his property. This rule of law no longer prevails in this state. Rev. Code 1915, § 3059, provides that "Any married woman may receive the wages of her personal labor not performed for her family, maintain an action therefor in her own name." Section 3058 provides: "The real and personal property or any married woman acquired in any manner whatsoever from any person other than her husband, shall be her sole and separate property." This court in the case of Stockwell v. Baird, 1 Marvel, 420, 31 Atl. 811, having under consideration said section 3058, said, the same language being also used in the case of Whiteman v. Whiteman, 7 Boyce,, 105 Atl 787: "So that by the special terms of this law there is an inhibition against the wife's acquirThis ing property directly from her husband. statute is in derogation of the common law, and while it gives the wife the right to take property from any other person than her husband and to hold it as her sole and separate prop. erty, it expressly negatives the idea that the wife can take property directly from the husband." You will observe, therefore, that the wife cannot claim property as her sole and separate property which she acquires directly from her husband. So that if any of the property which was taken under the writ of replevin in this case was acquired by the plaintiff from her husband, she cannot have a recovery for such property which the defendant took on execution process against her husband. As to such property you must return a verdict in favor of the defendant. [7, 8] If you find that any of the property taken under the writ of replevin was purchased by the plaintiff with money obtained elsewhere than from her husband, or that she acquired any of the property as gifts from persons other than her husband, then as to such property your verdict must be for the plaintiff. If you find that the title or property in any of the goods taken under the writ of replevin and not disclaimed does not belong to the plaintiff, and that she had no right to their immediate possession at the time the writ in this case was issued, your verdict should be for the defendant for such property; and, if the defendant does not ask for the return of such property, your verdict should be for damages in favor of the defendant in the amount equal to the value of the goods taken as disclosed by the evidence with interest thereon from the day it was replevied to this time. If you find that the property levied upon by the sheriff was not liable to be levied upon under the execution issued out of this court by the American Agricultural Chemical Company against B. W. Reynolds, the husband of the plaintiff, and was not at the time the property of B. W. Reynolds, but that it was the property of the plaintiff, your verdict should be for the plaintiff for nominal damages and her costs. Verdict for the plaintiff. |