86 So. 390 | Ala. | 1920
From a judgment for plaintiffs (appellees) this appeal is prosecuted. The case of the plaintiffs went to the jury upon the issues made by a general traverse of the averments of counts 1 and 4; the former count declaring upon a wrongful taking of certain household effects, "the property of the plaintiffs," and the latter for the conversion of the chattels, "the property of the plaintiffs." There was evidence, given by one of the plaintiffs, in support of this allegation of ownership. The insistence in brief for error on that account is, hence, not well taken.
Ike and Mary Holly lived in a dwelling near Bessemer on which the defendant (appellant) held a mortgage, several installment notes secured thereby being past due. Ike went to Kentucky, and Mary soon followed. She stored the household effects in one room of the building and rented the other rooms to a negro named Booker; and when she left gave the key to the storage room to Booker, thus putting the furniture, etc., in the custody of Booker. Mary testified that she "turned all the keys over to him [Booker]," and "left him to look after everything"; and that she went to see defendant (appellant) and advised him that Booker was in charge of everything, defendant agreeing to collect the rent from Booker and apply it to the mortgage debt on the real estate. There was evidence in conflict with this statement of defendant's agreement. When the plaintiffs returned, defendant had foreclosed his mortgage, and the chattels stored in the room had been removed. A great deal of these chattels was subject to liens in favor of other persons or concerns; and these lienees or title retainers had taken the property subject to their claims. It was not shown on the trial that this defendant was in any way legally accountable for the taking by these lienees or title retainers of the chattels stored and committed to the custody and charge of the agent of the plaintiffs; no force, violence, or other improper conduct attending the act of taking. Street v. Sinclair,
We do not find in this record any evidence tending to support either the averment that the defendant tortiously "took" the other chattels stored in the room, or that defendant "converted" them. These items of evidence appear to be all that an argument to the contrary could be rested on, viz.: (a) That defendant declared, while the goods were in the room (after plaintiffs left), that they belonged to him; (b) that on one occasion *520
he had a key to the storage room and opened it, but disturbed none of the goods; and (c) that defendant was present, came with the wagons, when lienees or title retainers removed that part of the goods from the storage room (the door thereto being voluntarily opened by the custodian to whom plaintiffs committed the key and its charge), and assisted agents of these lienees or title retainers in loading the part taken away under their claims of liens or title. A "conversion" has been acceptably defined by this court in Bolling v. Kirby,
"The owner's loss, and not the wrongdoer's gain, is the point chiefly regarded. It is the interference with the owner's prerogative of doing what he will with his own, that constitutes the chief element in the wrong."
The evidence discloses no such act, however affirmative the declarations, as would warrant the conclusion that defendant converted the property of the plaintiffs. There is no evidence that he took possession thereof from plaintiffs' custodian. There is no evidence that the owner's prerogative or that of the owner's agent was interfered with by defendant. The fact that defendant had a key to the room and opened the door did not amount to an assumption of control or dominion, particularly when plaintiffs' custodian had a key to the storage room. It results from these considerations that defendant was erroneously denied the general affirmative charge against a recovery under the "trover" count.
The other count was likewise without support in the evidence. The indicated phases of the evidence did not tend to establish a "taking" of the property of plaintiffs or any part of it, as alleged in the first count. The plaintiffs were not entitled to recover on that count.
For the errors noted, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
