Lucas v. Sheridan

124 Wis. 567 | Wis. | 1905

Cassoday, C. J.

The houseboat mentioned is not here in controversy. Counsel for the defendants concede that after they seized the houseboat as the property of WTieeler, as mentioned, it was replevied by the plaintiff, and that eleven days after such seizure it was found to be the property of the plaintiff in this action, and so was turned over to him by the defendants. The controversy here relates entirely to the articles of personal property belonging to the plaintiff and inside of the houseboat at the time of such seizure.

1. Exception is taken because, in charging the jury, the-court, among other things, said:

“But if the man in charge of the boat knew that the plaintiff was the owner, or if at that time he was so informed by the plaintiff, and if the custodian then forbade the plaintiff to take the property in suit, such denial of the plaintiff’s right was a denial by the defendants, and amounted to an assertion on their part of the control or dominion over this-property, and was a conversion of it, in the law; and, if you find that such was the fact, then the plaintiff is entitled to-recover of the defendants the full value of his property which was removed by them from the houseboat, unless you are satisfied that at a later date they offered to return to him the property, or offered to permit him to take it, and that it was-then in substantially as good condition as it was in just before it was removed from the houseboat.”

“It may be stated as a general rule that every act of control or dominion over personal property without the owner’s-authority, and in disregard and violation of his rights, is, in contemplation of law, a conversion.” 28 Am. & Eng. Ency. of Law (2d ed.) 679. The decisions of this court are in harmony with such statement. Dexter v. Cole, 6 Wis. 319 ; Thomas v. Steele, 22 Wis. 207; Dunham v. Converse, 28 Wis. 306 ,Tobin v. Deal, 60 Wis. 87, 18 N. W. 634; Brickley v. Walker, 68 Wis. 563, 32 N. W. 773; Boldewahn v. Schmidt, 89 Wis. 444, 62 N. W. 177; LaChapelle v. W. & B. S. Co. 95 Wis. 518, 70 N. W. 589; Cernahan v. Chrisler, 107 Wis. 645, 647, 648, 83 N. W. 778. As stated in this last case by way of quotation from Cooley on Torts: “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.” As said in that case by Mr. Justice BaRdeeh, the test is whether the wrongdoer has exercised a dominion over the property in exclusion or in defiance of the plaintiffls rights. We must hold that there was no error in giving the instruction quoted.

2. We cannot say that the verdict of the jury is not sustained by tbe evidence. Adams v. C. & N. W. R. Co. 89 Wis. 645, 62 N. W. 525 ; Renne v. U. S. L. Co. 107 Wis. 305, 320, 83 N. W. 473, and cases there cited; Collins v. Janesville, 117 Wis. 415, 421, 94 N. W. 309. Tbe evidence on tbe part of tbe plaintiff tends to prove tbat just prior to tbe levy tbe plaintiff informed tbe defendants tbat the houseboat and all tbe articles of personal property contained therein were bis property in bis possession, and tbat they must keep off from it and let it alone; tbat soon after the levy upon tbe houseboat, and on tbe same day, tbe plaintiff went there, and found one of tbe defendants and another gentleman carrying bis goods off from tbe boat and throwing them on tbe beach; tbat tbe plaintiff walked onto tbe boat and was. ordered off by them, and was told to get off and stay off; tbat be then went away, and returned about 6 o’clock in tbe evening, of tbe same day with a couple of boys to take bis goods and put them under cover; tbat be told tbe gentleman there in possession of tbe goods tbat they were bis property, and tbat tbe gentleman in charge then said to him: “These goods are in my possession, and you get away from here and leave them alone;” tbat it was cloudy and misty on tbat day and rained tbat night. It is undisputed -that two or three days after-wards one of tbe defendants went to tbe plaintiff and said to him tbat there bad been a misunderstanding about that property, and tbat tbe plaintiff could then have it, if be wanted it, and .to go and get it; tbat tlie plaintiff then informed him tbat it bad been raining on tbe property for two or three days and much of it bad been spoiled.

3. Error is assigned because tbe court charged tbe jury upon this last phase of tbe evidence to tbe effect tbat if tbe jury were satisfied by tbe evidence tbat the property bad in tbe meantime been materially injured by rain or otherwise, or tbat it bad been in part earned away by persons unknown, then tbe plaintiff was not bound to accept such offer of return, but tbat in such case be was entitled to recover tbe fair and reasonable value of tbe property in suit, as they should find the same to be from the evidence. We perceive no error in such portion of the charge. In fact the whole charge is quite favorable to the defendants, and the verdict of the jury in favor of the plaintiff is fully justified by the evidence.

4. There is no ground for the contention that the damages are excessive.

By the Court. — The judgment of the circuit court is affirmed.