Benton v. Ortenberger
| Decision Date | 15 May 1962 |
| Docket Number | No. 38841,38841 |
| Citation | 371 P.2d 715 |
| Parties | Eather Earl BENTON and Mary Benton, Plaintiffs in Error, v. Robert D. ORTENBERGER, Edmond D. Jones, Jr., and Edmond D. Jones, III, and Citizens State Bank of Tulsa, Oklahoma, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In an action for damages for conversion the burden of proof is on the plaintiff to prove every fact essential to his right to recover. He must show title or ownership to the property involved in himself; must show a conversion of the property involved by proving some affirmative wrongful act, and must prove the damages sustained by him.
2. Plaintiff, in action for conversion, must prove his ownership or right of possession by a preponderance of the evidence, and where the evidence shows that possession is shared by him and vendor, he is not entitled to recover against a creditor of the vendor who takes property under title acquired through foreclosure sale.
3. Where, in an action for damages for the conversion of plaintiff's property, there is a complete failure in plaintiff's proof to show title or ownership of said property in himself, and there is an entire lack of evidence to support a verdict for damages for conversion, it is not error for trial court to direct a verdict for defendant.
Appeal from the Court of Common Pleas of Tulsa County; Jas. P. Goeppinger, Judge.
Action for damages for alleged conversion of personal property. Judgment for defendants, and plaintiffs appeal. Affirmed.
David Young, Glenn O. Young, Sapulpa, for plaintiffs in error.
Robert L. Cox, Oklahoma City, for defendants in error.
This action was instituted in the Court of Common Pleas of Tulsa County for damages for conversion of personal property. At the close of the trial the defendants' motion for directed verdict was sustained and judgment rendered accordingly. An appeal has been prosecuted to this court by the plaintiffs from that judgment.
In presenting their argument that the trial court erred in directing verdict for defendants, the plaintiffs rely on the rule of law which defines conversion, and cite Aylesbury Mercantile Co. v. Fitch, 22 Okl. 475, 99 P. 1089, 23 L.R.A.,N.S., 573; First National Bank of McCloud v. City National Bank of Wellington, Tex., 71 Okl. 52, 175 P. 253; George W. Brown & Sons State Bank v. Polen, 132 Okl. 121, 270 P. 9; American National Bank of Wetumka v. Hightower, 184 Okl. 294, 87 P.2d 311; Champlin Refining Co. v. Aladdin Petroleum Corp., 205 Okl. 524, 238 P.2d 827; Hall v. Deal, 205 Okl. 46, 234 P.2d 384; all of said cases hold conversion is any distinct act or dominion wrongfully exerted over personalty of another in denial of or inconsistent with his rights therein. Murrell v. Griswold, Okl., 338 P.2d 150, is also cited in support of said argument. In that case we held:
'A mere illegal taking or wrongful assuming of right to personal property constitutes 'conversion' and no further step is necessary to perfect right of action therefor.'
We agree with these authorities, and with the rule of law defining conversion as stated therein, however, we do not agree that the above cases are in point with the question herein presented. The question of title or ownership of the property is not raised in the above cases, while that is the determining factor upon which the trial court apparently directed a verdict for defendant in the case before us.
In further support of their argument plaintiffs call our attention to the case of Wilson Motor Co. v. Dunn, et al., 129 Okl. 211, 264 P. 194, 57 A.L.R. 17, wherein we said:
Upon examination of the record in this case we do not find the defendants to have taken the property by either force, threats, violence or stealth. Their taking said property was based upon title to the same acquired when the bank as creditor foreclosed a mortgage executed to it by Davidson (purported seller) and purchased the same at foreclosure sale approved by the court.
In actions for conversion the burden of proof is on the plaintiff to prove every fact essential to his right to recover. He must show title or ownership in himself, of the property involved. He must show a conversion of the property involved, and in order to establish a conversion plaintiff must prove some affirmative wrongful act. He must prove the damages sustained by him. Plaintiff must prove his ownership or right of possession by a preponderance of the evidence, and if the evidence is evenly balanced on the right of possession he cannot recover. 89 C.J.S. Trover and Conversion §§ 116 to 133 inclusive, pages 608-622.
Plaintiffs base their title to the property here involved upon a bill of sale from Mrs. Marion Davidson to property described as one-Columbia House Trailer, Serial No. 8842, used as Cabin House Boat, located at Mitchell's Docks on Fort Gibson Lake, and a conditional sales contract entered into between Eather E. Benton, one of the plaintiffs, and West Tulsa Trailer Sales, executed by W. Bert Davidson as agent for West Tulsa Trailer Sales, as seller and Benton as buyer, which describes the property as used 1952 Columbia Turquoise and White, 33 feet length, Serial No. 8842. Their ownership is based on purported possession by having a key to the said houseboat, access thereto and some personal belongings situated thereon. The property taken and removed by the defendants was a houseboat bearing serial number 110 D 5930, which was the only houseboat ever kept at Mitchell Boat Dock by Davidson, and was the same Serial No. shown in their chattel mortgage and in the foreclosure sale.
Eather Earl Benton, one of the plaintiffs, testified that he was not to pay any consideration for the houseboat, but that W. Bert Davidson agreed to pay all of the...
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...act of dominion wrongfully exerted over personalty of another in denial of or inconsistent with his rights therein. Benton v. Ortenberger, 371 P.2d 715 (Okl.1962). As stated above the right to telephone service is not an inherent right but a right to be exercised under the police power of t......
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...property asserts rights inconsistent with the title of the owner. Neyland v. Brammer, Tex.Civ.App., 73 S.W. 2d 884; Benton v. Ortenberger, Okl., 371 P.2d 715. There is no allegation that any part of the tortious wrong was initiated or completed in Oklahoma or that the consequences were suff......
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