132 Iowa 668 | Iowa | 1907
Necessary to an action for conversion is ownership on the part of plaintiff, and it must be made to appear that defendant has in some way appropriated the property to his own use and beneficial enjoyment, or that he is exercising ■‘dominion over it in exclusion or defiance of plaintiff’s right. Cooley on Torts, 448; Bigelow on Torts, 428. Looking first to the policy itself, if it be conceded that the writing executed by Hoyer to plaintiff was sufficient to invest the latter with the right to control settlement thereunder, and to collect to his own use the proceeds hereof, still there was no conversion. As we have seen, the policy was given by Iloyer to the company’s adjuster. What was done with the instrument does not affirmatively appear, but we may presume that the adjuster sent it to the home office with his report; this because it would have been the natural thing to do, and for the further reason that the instrument with a cancellation slip attached was produced on the trial by the attorneys for defendants. In any event there had been no demand for delivery thereof to plaintiff, nor had there been expressed to plaintiff any denial of his rights. But apart from this, the policy was no more than the evidence of the company’s obligation; that it had evidentiary
It is equally clear that there was no conversion of the proceeds of the policy or of the money due thereon. Plaintiff had no property right in the money represented by the draft sent to Clark; that was the property of the company, at least until delivered to Hoyer, the payee named therein. But, aside from this, it was a matter of no moment to plaintiff that the company should send a draft to Hoyer, even though the expressed purpose thereof was to extinguish its liability on the policy. As already pointed out, if plaintiff was in fact the owner of the policy and entitled to be paid the amount due thereon according to the adjustment of the fire loss, his right could not be abridged by any independent act of the company, and this no more by payment of money to some other person than by obtaining possession of the policy and cancelling or destroying the same. If defendants did not even abridge any right by which in law plaintiff was clothed they certainly could not be guilty of conversion.
We conclude that there was no error in the judgment, and it is affirmed.