19 Or. 141 | Or. | 1890
Lead Opinion
delivered tbe opinion of tbe court.
Tbe journal entry disposing of this cause in tbe court below recites tbat after tbe plaintiff bad introduced bis evidence in chief, and tbe defendants their evidence in chief, and tbe plaintiff bis evidence in rebuttal, and the plaintiff having announced tbat be bad no more evidence to offer, tbe defendants filed their written motion for judgment of non-suit, which was duly argued and submitted to tbe court, and by tbe court sustained, and then follows tbe usual judgment of non-suit which awards costs to tbe defendants. Tbe practice on this subject in this State is regulated by section 246, Hill’s Code, which pro vides:
“A judgment of non-suit may be given against tbe plaintiff as provided in this title— * * * 3. On motion of tbe defendant, when tbe action is called for trial, and tbe plaintiff fails to appear, or when after tbe trialbas begun, and before tbe final submission of tbe cause, tbe plaintiff abandons it, or when upon tbe trial tbe plaintiff fails to prove a cause sufficient to be submitted to tbe jury.”
Under this section of tbe Code tbe test is, whether or not tbe plaintiff’s evidence tends to prove a cause sufficient to be submitted to a jury; and in passing on this question
So also in Tippin v. Ward, 5 Or. 454. it was held that a case should be submitted to the jury, unless there is an entire lack of evidence tending to maintain the issues on the part of the plaintiff; or unless upon the whole case made by the plaintiff himself it appears beyond doubt that the plaintiff has no right to recover; and the same principle was applied in Southwell v. Beezley, 5 Or. 459.
Prima facie the plaintiff made a case sufficient to be submitted to the jury. He showed the delivery of his property to the defendants for a particular purpose, gave testimony tending to prove its value, a demand on the defendants for its return, and their failure to return it. The jury had the right to pass on this evidence and to say under proper instructions of the court whether or not the plaintiff was entitled to a verdict. He was, unless the effect of this evidence was countervailed in some way by the defendants, and they presented another question proper for the jury to consider. The defendants set up that the property was lost while it was in their custody. Whether the
The learned counsel for the respondents, in support of the practice adopted in the court below, cites Jansen v. Acker, 23 Wend. 481; Rudd v. Davis, 3 Hill, 287 S. C. 7 Hill, 529; People v. Cook, 8 N. Y. 67;
4. Respondents’ counsel has criticised the complaint, and doubtless it would have been more in harmony with the spirit of code pleading if it had alleged, amongst other things, the delivery of this property to the defendants, and the object of such delivery, etc., and the defendants’ failure to return it; but the defendants have supplied that by an “express aider” in their answer. Bliss Code Pl. § 437. These allegations are contained in the defendants’ answer, with the further matter designed to excuse such failure.
These are questions which should have been tried out before that jury, upon the merits of which we indicate no opinion at this time, but reverse the judgment and remand the cause for a new trial.
(1) 59 Am. Dec. 451.
Concurrence Opinion
concurring. — I concur with Judge Strahan in his conclusions in this case regarding the rule of non-suit of a plaintiff under the Code of this State, and as to the sufficiency of the evidence upon the part of the appel
It also appeared from the testimony of Mr. Arthur, manager of the respondent’s business at Portland, when on the stand as a witness for the appellant, that he had a vague recollection that the plans were sent to San Francisco either .by himself, Mr. Campbell, mechanical engineer for the respondents, or were taken there by Mr. Parke; ¡and upon his cross-examination by respondents’ counsel, he .testified that the object in sending the plans to San Francisco was simply to get a bid. from the home office at what they could manufacture .the machine for; that they were endeavoring to secure a price; that the facilities for manufacturing in San Francisco were much better than in i Poxtland; that he continued with respoE dents at their Por t-
The main point in the case is, whether the appellant, by leaving the plans with the respondents at Portland, under the circumstances and for the purpose as testified to by him, authorized the respondents to send them to their home office in San Francisco, for the purpose claimed by them. If the respondents were not so authorized then they were guilty of wrongful conversion of the property, as ‘ ‘any interference subversive of the right of the owner of personal property to enjoy and control it, is a conversion.” Budd v. Multnomah St. Ry. Co. et al. 12 Or. 271. It was not nee e isary that the respondents should have made use of the plans for their own benefit or appropriate them to their own personal advantage in order to constitute a conversion. “The question is, did the respondents exercise dominion over them in exclusion or in defiance of the appellant’s right.” Page 108, vol. 4, Am. & Eng. Ency. of L. The gist of the conversion is the usurpation of the owner’s right of property, and not the actual damages inflicted. Note 1, page 113, id. Nor is it necessary that the act should be wilful or intentional to render it a conversion. ‘ ‘If a carrier by mistake delivers goods to the wrong person he is liable in trover. ” Note 1, p. 112, vol. 4. id. “Honesty of purpose is not a defense, and can in no measure shield the defendant from liability, except to prevent the giving of punitive damages. ” Wait’s Actions and Defenses, vol. 6, p. 164. ‘ ‘And it makes no difference — in case of bailment — that the depositary did the act for the benefit of the depositor or that it really inured to his benefit. He has no right to use the property for any purpose other than that for which it was left with him, upon any consideration or for any purpose, not even for its preservation.” Page 165, id. “Any abuse of possession, lawfully acquired, or any breach of the trust under which it was placed in the defendant’s hands, is an actionable conversion.” Page 166, id.
The respondents doubtless acted in good faith in the affair and intended no wrong, but they seem to have been careless and indifferent, at least they had no intelligent idea as to when, how or by whom the plans were sent away, though the appellant evidently was as constant in calling upon them in regard to the matter as any person having a favorite object in view would be likely to-be. He probably became a source of annoyance to the managers of the respondents’ business and received very lit fie attention; but he had rights which they were bound to respect, and the workings of his Italian brain, if encouraged, might have produced results important to himself and the community. The respondents, at all events, should not have usurped his right to exercise dominion over his own property and exclude him from its control, which I think they did do, if they sent the plans to San Francisco without his consent. Whether they did so or not, and whether they acted prudently in the affair, are in my opinion proper questions to be submitted to a jury.
Dissenting Opinion
dissenting. — The evidence for the plaintiff •only shows that the plans “were missed and could not be
At the argument, it was said that if one person hires a* horse to drive to one place and he voluntarily drives to ■ another, it is a technical conversion of the horse; and so; too it was claimed that when the defendants sent the plans to their San Francisco house to estimate the cost instead of making the estimate at their Portland house, or at least'
To constitute conversion, there must be seme act of dominion exerted over one’s property in denial of his right, or inconsistent with it. When one hires a horse to drive to one place and he drives it to another, he unlawfully intermeddles with the property of another for his own benefit and appropriates the horse to a use inconsistent with the terms of the bailment. In sending the plans to the San Francisco house, the defendants neither claimed nor exercised any right of property or dominion over them inconsistent with or in denial of the plaintiff’s right as the lawful owner, but the conceded facts show that the plans were sent there to better effect the purpose of the bailment and without any intention of appropriating the property to their own use, or to destroy them, or to deprive the plaintiff of them as a rightful owner.
“Conversion,” said Field, J., “is based upon the idea of an assumption by the defendant of a right of property, or a right of dominion over the thing converted, which casts upon him all the risks of an owner, and it is therefore not every wrongful intermeddling with, or wrongful
What are the acts which, by any possible construction, can be considered as an assumption by the defendants of a right of property or dominion over the plans, casts upon them the risks of an owner? They claim no right to the plans, nor denied the right of the plaintiff to them; nor did they refuse, on demand, to deliver them, but, by the evidence of the plaintiff, the plans were mislaid and could not be found, or perhaps were lost. It is the withholding of the thing in his possession, or under his control, when demanded, that makes a prima facie case of conversion, but not when the evidence shows that at the time of the demand the thing or property was not under his control, o'r was mislaid or lost. In such case, the property is not withheld, because the defendant ciaims the right to withhold it, which is a claim of right of dominion over it, but because the property at the time is not under his control and capable of delivery.
The authorities are numerous to the point, that demand and refusal will not be sufficient evidence of conversion, when it appears that the property demanded was not at the time-in the possession nor under the control of the defendant on wham the demand was made, but that it had
In the case at bar the evidence for the’plaintiff is specific to the point that the reason why the plans were not restored to him when demanded, was that they had been mislaid and could not be found, or were lost, and therefore not capable of delivery. The conduct of the defendant may have been negligent or careless, and for which they may be liable in some form of action, but in no legal sense does it constitute acts which imply an assertion of title, or a r'ght of dominion over the property as will sustain an action of trover.
I think the plaintiff failed to establish a case sufficient to be submitted to the jury, and the court committed no error in granting the non-suit.