Atl. Coast Line R. Co v. Mcree

• Decision Date: 22 January 1913
• Docket Number: (No. 4,453.)
• Citation: 76 S.E. 1057,12 Ga.App. 137
• Parties: ATLANTIC COAST LINE R. CO. v. McREE.
• Court: Georgia Court of Appeals

76 S.E. 1057

12 Ga.App. 137

ATLANTIC COAST LINE R. CO.

v.McREE.

(No. 4, 453.)

Court of Appeals of Georgia.

Jan. 22, 1913.

(Syllabus by the Court.)

Trover and Conversion (§§ 32, 35^*)—Evidence—Pleading.

To make out a prima facie case for recovery in an action for damages for a conversion of personal property, the plaintiff must show title to the property, possession in the defendant, a demand for possession, and a refusal by the defendant to surrender the property, or an actual conversion prior to the filing of the suit. The present case, being a suit for damages for alleged conversion of certain described personal property, and there being no allegation of a demand for possession and of refusal by the defendant to surrender the property to the plaintiff, or of facts showing a conversion of the property, a demurrer, based upon the insufficiency of the allegations to show these essential facts, should have been sustained.

[Ed. Note.—For other cases, see Trover and Conversion. Cent. Dig. §§ 191-202, 215, 216 Dec. Dig. §§ 32, 35.*]

Error from City Court of Valdosta; C. M Smith, Judge pro hac.

Action by W. S. McRee, surviving partner of E. J. and W. S. McRee, against the At lantic Coast Line Railroad Company. Judg ment for plaintiff, and defendant brings er ror. Reversed.

This was a suit by W. S. McRee, surviving partner of E. J. and W. S. McRee, against the Atlantic Coast Line Railroad Company to recover the value of certain lumber, alleged to have been delivered to the railroad company, and which had not been delivered, but had been converted. The petition, in substance, makes the following case: On October 1, 1907, petitioner delivered to the railroad company, at Kinder Lou, Ga., certain lumber, which is fully described in the petition, consigned to Haskell & Barker Car Company at Michigan City, Ind. The railroad company carried the lumber away from Kinder Lou, "but has never delivered same to Haskell & Barker Car Company, but has appropriated same to its own use. This lumber was worth $422.37, and the railroad company, by reason of the facts stated in the petition, has damaged petitioner in this sum. Three amendments to this petition were filed. The first alleged generally that the defendant company "converted said lumber to its ownuse." The second alleged that "after defendant carried said lumber away from Kinder Lou, as stated, it brought said lumber to Valdosta, Ga., and put same on its right of way in a remote place in the city of Valdosta;" and the third "that immediately after said lumber had been loaded on said cars at Kinder Lou, Ga., and before same had been moved away by the defendant, plaintiffs received information from the said Haskell & Barker Car Company that said order had been turned down, and that they would not receive or take said lumber; that plaintiff immediately notified the agent of the defendant at Kinder Lou that said order had been refused by the Haskell & Barker Car Company and that same could not be shipped to them. Notwithstanding said notice, the defendant carried said lumber away from Kinder Lou, without any instruction from the plaintiffs so to do, and have never paid plaintiffs for same." To the original petition, as well as to the amendments thereto, there was a demurrer, on the ground that no cause of action was shown by the allegations, because it was not alleged that any demand had been made on the railroad company for the lumber, and the facts did not show any conversion by the railroad company. This demurrer was overruled, and the defendant excepted.

E. K. Wilcox, of Valdosta, and Bennet & Branch, of Quitman, for plaintiff in error.

Whitaker & Dukes,...