Clark v. Whitehurst

• Decision Date: 15 September 1915
• Docket Number: 34.
• Citation: 86 S.E. 78,171 N.C. 1
• Parties: CLARK v. WHITEHURST.
• Court: North Carolina Supreme Court

86 S.E. 78

171 N.C. 1

CLARK v. WHITEHURST.

No. 34.

Supreme Court of North Carolina

September 15, 1915

Appeal from Superior Court, Beaufort County; M. H. Justice, Judge.

Action by J. H. Clark against Henry Whitehurst. From a judgment of nonsuit, plaintiff appeals. Reversed.

Ward & Grimes, of Washington, N. C., for appellant.

CLARK C.J.

The complaint alleges that the defendant wrongfully took from the stables of the plaintiff a bay mule, the property of the plaintiff, without his knowledge or consent, and drove him a distance unknown to the plaintiff, and so cruelly mistreated and abused said mule that he died, and this action is to recover the sum of $200, alleged to be the value of the mule.

At the trial the evidence for the plaintiff was that the defendant who was in the employment of the plaintiff as an occasional laborer, took the mule in question from plaintiff's stables at night, and drove her off without his knowledge or consent, and that while in his possession the mule died; that the mule was worth $200; and he asks damages in that amount. There was evidence that the defendant was cruel to team, but no direct evidence that the death of the mule had been caused by overdriving or bad treatment, and doubtless on that ground the court directed a nonsuit. In this there was error. In Bethea v. McLennon, 23 N.C. 531, it is said:

"There is a marked distinction between the action of detinue and that of trover, though, in many cases, it is at the option of the plaintiff to bring which he will. The former asserts a continuing property in the plaintiff, and alleges the wrong to consist wholly in the withholding the possession of his goods from him by his bailee; while the latter affirms that, although they were once the proper goods of the plaintiff, they have been made the goods of the defendant, and complains of the injury caused by this conversion. If, after being thus converted, the goods perish by unavoidable accident, the loss falls upon the defendant, who has made them his; and this misfortune shall not exonerate him from answering for the prior wrongful conversion."

The defendant in this case was not a bailee, and this was a tortious conversion under circumstances which made the defendant indictable if the evidence is true, and it must be taken as true upon a nonsuit. Revisal, § 3509; State v Darden, 117 N.C. 697, 23 S.E. 106. Besides, though the defendant so averred in his answer, he has offered no evidence that the death of the mule was caused by accident, which at most was a matter of defense and in his knowledge. The defendant, having taken the mule wrongfully and not having returned him, is liable for his value. In Skipper v. Hargrove, 1 N. C. 27, it was held that where one had wrongfully taken a slave, who died pending the action to recover her, he was liable for her value. It is true that this case was criticized in Bethea v. McLennon, supra, but solely upon the ground that the action was brought in detinue, and not in trover, as in the present case. These refinements as to the distinction of the forms of action have now long since disappeared. But, if they had not, the present is an action, not for the specific property as in detinue, but for damages for the conversion and for the failure to return.

In Taylor v. Welsh, 138 Ill.App. 190, it was held that even in an action to recover the animal, if it proved to be in a dying...