Lora, Seidman and Milmed.
[153 NJSuper Page 269] This is an appeal from a judgment upon a jury verdict against the City of Newark and certain of its police officers arising out of the return of money seized by the police from a robbery suspect, Henrietta Winfrey, after the indictment against her had been dismissed and notwithstanding that the victim of the alleged robbery, plaintiff Michael Capezzaro, had prior thereto claimed the money was his.
The record shows that plaintiff reported to the police that he was robbed of $7,500 at gunpoint by a woman. The following day Henrietta Winfrey was arrested with a total of $2,480.66 in her possession. Capezzaro positively identified her as the woman who had robbed him and claimed the money found on her was part of that which she had taken from him. Winfrey was jailed and the money impounded by the police as evidence of the crime. Several months later Winfrey was indicted for the armed robbery of plaintiff. Approximately two years after the indictment was returned, upon motion by the prosecutor, this indictment, along with others against Winfrey was dismissed based upon medical opinion that she was unable to know right from wrong at the time she allegedly committed the crimes with which she was charged.
The police officers in charge of the department's property room were notified of the dismissal of the indictment by the warden of the county jail and thereupon released the money to Winfrey. Eventually plaintiff found out about the dismissal of the indictment and the release of the money to Winfrey and instituted this suit claiming that the money was his. At trial Winfrey, who could not be served, did not appear and the jury returned a verdict in favor of plaintiff and against defendants for $2,480.
On appeal defendants contend that (1) the trial judge erred in refusing to charge that the police department was a gratuitous bailee of the money for the bailor Winfrey and as such was liable only for bad faith or gross negligence, and (2) when the indictment was dismissed any claim made by plaintiff lost its validity and defendants-appellants were obligated to return the monies in question to the bailor.
It has been said that a constructive bailment or a bailment by operation of law may be created when a person comes into possession of personal property of another, receives nothing from the owner of the property, and has no right to recover from the owner for what he does in caring for the property. Such person is ordinarily considered to be a gratuitous
bailee, liable only to the bailor for bad faith or gross negligence. 8 Am. Jur. 2d, Bailment , § 14 at 918 (1963); Weinstein v. Sheer , 98 N.J.L. 511, 514 (E. & A. 1922); Dudley v. Camden and Phila. Ferry Co. , 42 N.J.L. 25, 27 (Sup. Ct. 1880). And see, Zuppa v. Hertz Corp. , 111 N.J. Super. 419 (Cty. Ct. 1970) in which it is stated:
Where possession has been acquired accidentally, fortuitously, through mistake or by an agreement for some other purpose since terminated, the possessor, "upon principles of justice," should keep it safely and restore or deliver it to its owner. Under such circumstances the courts have considered the possessions quasi -contracts of bailment or constructive and involuntary bailments. State v. Carr , 118 N.J.L. 233, 234 (E. & A. 1937).
Here the police seized and obtained custody of the money which was found in Winfrey's girdle during a search in her cell after her arrest on the robbery charge and after plaintiff claimed Winfrey had stolen it from him. It is undisputed that the money was being kept by the police as evidence for use in Winfrey's prosecution. It follows, then, that the City of Newark, through its police department was holding the money for its own benefit as well as for the benefit of its rightful owner.
Ordinarily, a person who has possession of property may be presumed by another to be the rightful owner thereof in the absence of any knowledge to the contrary. However, here the police were fully aware of plaintiff's adverse claim, but notwithstanding such knowledge and without notice to plaintiff turned the money over to Winfrey.
Neither counsel has cited to nor has our research unearthed any case directly on point. Thomas v. ...