67 W. Va. 273 | W. Va. | 1910
In the court below plaintiff recovered a judgment for $1397.48, 'the value, as found by the jury, of one centrifugal pump, ten feet of rubber hose, and one hoisting engine, which he claimed had been tortiously taken from him by defendant, and used and appropriated to its use, without his knowledge or consent.
Waiving the tort plaintiff brought his action in assumpsit on the common counts, in one count thereof alleging the defendant to be indebted to him “in the like sum for the price of
The property in question had been owned in 1905 by the Walker Construction Co., a corporation, and used in sub-eon-tract work on the railroad of defendant, and upon completion of its contract, was stored with other property belonging to it, on defendant’s right of way, near where it had completed its contract.
The defendant contends, first, that plaintiff did not show title in himself, and right to sue, the right, if any, being in the Walker Construction Company, and not in him individually; second, that a promise to pay the value of the property, as distinguished from the value of the use thereof, can not be applied and made effective in an action of assumpsit, as attempted in this ease.
On the first proposition the evidence of the plaintiff, uncon-tradicted is that he was the owner of fifty one of the one hundred shares of the capital stock, and had acquired from a Mr. Pedigo the other shares; that the affairs of the company had all been settled up, and that he had taken over all its property in settlement, about October, 1907, and that the company was no longer in business. This evidence, we think, showed plaintiff entitled to maintain the action in his individual name.
On the second proposition the evidence shows, that one Walker, an employee of defendant, in charge of a pumping station a half mile west of the point where plaintiff’s company was at work, went to the place where plaintiff’s company was at work, and without asking permission took the pump now sued for, 'and installed it in place of the pump defendant had in use there. After plaintiff’s company had completed its work he wrote Walker to return the pump, but it. was never returned. Before the institution of this suit, as the evidence shows, the ■pump had been picked up by the company’s trainmen, near where it had been used, in a broken and worn out 'condition, and taken to Portsmouth and put on the junk pile. The piece of hose met a similar fate. The evidence respecting the hoist
It is argued by defendant’s counsel that plaintiff by leaving his property stored on defendant’s right of way made it an involuntary bailee, of the class depositum, with right to move the property from place to place to suit its convenience. To have stated his proposition fully we think he should have added, "and to appropriate the same to its own use.” Is the proposition as stated by counsel, or as modified by us to suit the facts, correct in law? A bailment signifies a contract, express or implied, resulting from delivery. The definition' of Sir William Jones, as given by Story, is: "A delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purposes for which they are bailed shall be answered;” or "A delivery of good in trust, on a contract expressed or implied, that the trust shall be duly executed, and the goods redelivered, as soon as the time or use for which they were bailed shall have elapsed, or be performed.” That of Blackstone is: "A delivery of goods in trust upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee or as stated in another form: "Delivery of goods to another person for a particular use.” Story on Bailments, section 2; 5 Cyc. 165. Mr. Kent, blending those two definitions, says: “Bailment is the delivery of goods in trust, upon ■ a contract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the-bailment shall be answered.” 2 Kent Com. (14 Ed.) 559. Our case of Coal Co. v. Richter 31 W. Va. 858, says: .“Bailments
It is not claimed in this case that there was any actual delivery to or voluntary acceptance by defendant of the property in question, rendering it liable as upon an express or implied contract of bailment, but that it became an involuntary bailee, rendering it liable to account as such, and not for the tortious taking of the property. The authority relied on for this proposition is Ryland & Rankin v. C. & O. Ry. Co., 55 W. Va. 181. That suit grew out of the contract of a common carrier of goods for hire, of the class locatio condualio and not depositum. Plaintiff sought to recover the value of the goods as lost, and though shown not to have been lost, we do not see that it-is a case in point.
Did the storage of plaintiff’s property on defendant’s right of way amount to a delivery thereof to defendant as bailee; and did the tortious taking and approiiriation thereof by it signify an. implied acceptance thereof as bailee; or as claimed make it an involuntary bailee, relieving it of liability for the tortious taking thereof? We think not. We think defendant’s
Therefore we see nothing in the case differentiating it from the eases of McDonald v. Peacemaker, 5 W. Va. 439, and Maloney v. Barr, 27 W. Va. 381, holding that in such cases the owner may waive the tort and sue the wrongdoer in assumpsit for the value of the property taken. Other authorities cited for the same proposition are,, 1 Barton’s Law Pract., pp. 124-125; 15 Am. & Eng. Ency. L. 116 (2nd Ed.) and cases cited; Terry v. Munger, 121 N. Y. 161 (18 Am. St. Rep. 803); Downs v. Finnegan, 58 Minn. 113 (49 Am. St. R. 488);
The judgment below is therefore affirmed.
Affirmed.